It is widely known that the entire scheme of democracy is founded upon four main pillars, viz—Legislature, Executive, Judiciary, and Media. However, in a country governed by the rule of law which is one of the essential facets of democratic governance, law-making is regarded as one of the most vital businesses under the respective Constitutional schemes molded by the notions of democracy. Thus, in a democratic form of government, the Parliament, i.e., the Legislature of the country, is regarded as the first pillar of democracy that acts as the supreme law-making body constituted under every democratic Constitution in the world. As per the concept of representative democracy, the elected representatives of the people are entrusted with the law-making business as the lawmakers. For the purpose of enabling the Parliament or any other Legislative body to discharge the legislative functions without impediments or interferences of any kind that are likely to create obstructions or anything that are likely to disrupt the smooth and effective functioning of the legislative businesses and preserve its dignity and supremacy by means of vindicating its authority, prestige, and power, on the one hand, certain immunities or autonomies have been conferred to the Parliament or other Legislative body itself for that end while discharging its legislative functions. On the other hand, a number of immunities, rights, or freedoms have also been granted individually to the members of the Parliament or other Legislative body to allow its members to perform their duties without any fear, favor, or any other hindrances while performing such duties. These immunities, autonomies, or special freedoms which are essential for efficient law-making of any country being claimed by the members of the Legislatures individually as well as the Legislatures collectively are characterized as ‘Parliamentary Privileges’.
The concept of Parliamentary Privileges can be most appropriately elucidated in the following words of the British Parliamentary authority- “Treatise on The Law, Privileges, Proceedings, and Usage of Parliament,” written by noted British Constitutional theorist Thomas Erskine May which is regarded as the most authoritative definition of Parliamentary Privileges—
“Parliamentary privilege is 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 could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities, such as the power to punish for contempt and the power to regulate its own Constitution, belong primarily to each House as a collective body for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.”
Evolution of Parliamentary Privileges
The concept of Parliamentary Privileges owes its origin to the institution of Parliament in England during the 15th and 16th centuries when the legislative and executive branches of the government were separated from each other, and the House of Commons was struggling a lot to firmly establish its place in the legislative process of England and preserve its autonomy from the interferences and powers of the Crown and the House of Lords in its legislative functioning. According to Erskine May, the House of Commons, during the latter 15th century, used to enjoy the right to freedom of speech that was available to it as a matter of tradition but not by virtue of privileges expressly sought or obtained. Gradually, certain privileges were established in the late 16th century, and thereby, the special rights or immunities enjoyed by the monarch by virtue of the theory of inheritance and his divine right were being claimed by the House of Commons. However, the landmark English Constitutional law document- Bill of Rights, 1688, under Article 9, for the first time, granted statutory recognition to the privileges of freedom of speech and debates and internal autonomy of the Parliament in England.
In India, the Parliamentary Privileges can be noticed in the Vedic period when two assemblies named Sabha and Samiti were functioning to keep checks on the actions of the King. Later, in the British rule, the Parliamentary Privileges were brought into use in the legislative businesses in India viz— Charter Act, 1833, Charter Act, 1853, Indian Council Act, 1861, Indian Council Act, 1892, Government of India Act, 1915, Government of India Act, 1919, and Government of India Act, 1935.
Parliamentary Privileges in India
Article 105 of the Constitution of India sets out the Parliamentary Privileges available to the two Houses of the Parliament of India in the following words—
Powers, privileges, etc., of the Houses of the Parliament 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 Parliament, there shall be freedom of speech in Parliament.
(2) 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, 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 of the members and the committees 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 (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 Parliament or any committee thereof as they apply in relation to members of Parliament.
Thus, the Constitutional provision of Article 105 envisages Parliamentary Privileges of a House in two different aspects—
- External Parliamentary Privileges: It prohibits any external interferences, that is to say, the interferences by any person outside the House in the business of Parliament.
- Internal Parliamentary Privileges: It restrains the members of any House from doing something which may lower the dignity and authority of the House or amount to the abuse of their positions.
Therefore, it is evident that the privileges conferred by the provision to the Houses of Parliament are available to the Houses as well as the individual members of both Houses. That is to say that these privileges are available in two different aspects—
- Collective Privileges: On one hand, various privileges such as internal autonomy, power to punish for contempt in case of breach of privileges and also external interferences by strangers, freedom of speech in the debates, and the passing of resolutions expressing the collective opinion of the members for the public interest, rule-making powers, etc. can be enjoyed collectively by the House itself.
- Individual Privileges: On the other hand, privileges such as conferring protection from arrests of the members of both Houses in civil proceedings, freedom of speech and expressions in a much broader manner than that is guaranteed as a fundamental right to every citizen by the Constitution, etc. can be enjoyed by the individual members of the both Houses.
Moreover, it is noteworthy that the privileges conferred to the members of the Houses individually are also available by virtue of clause 4 of Article 105 to such persons, viz. Attorney General of India and Ministers who are not members of the House but are entitled under Article 88 of the Constitution to speak and take part in the Parliamentary proceedings or any committees thereof, although they cannot vote.
Privileges are available to the various Committees of the Parliament as well.
However, the above Constitutional provision does not exhaustively enumerate all the Parliamentary Privileges. It mainly lays down only a few privileges explicitly, and for the rest, it embodies the privileges available to the House of Commons in Britain. The framers of the Constitution intended to confer to each House of the Indian Parliament significantly broader privileges as enjoyed by the House of Commons in Britain.
Other Sources of Parliamentary Privileges and Statutory Provisions: Although the Parliamentary Privileges in India have not been properly codified yet, various rules made by the Legislative Houses also deal with those Privileges alongside the Constitutional provisions. Each House of Parliament has been conferred with the powers to make rules to regulate the conduct of the legislative as well as internal businesses under Article 118 [Article 208 in case of State Legislature]. Lok Sabha has made its rules in the exercise of that rule-making power, and those rules are contained in the Rules of Procedure and Conduct of Business in Lok Sabha. Chapter XX of the said Rule Book contains the rules governing the Privilege matters of the House. Rules 222 to 228 specifically lay down the rules and procedures to be followed in the House while dealing with the privilege matters. Rules 229 to 233 contain the rules and procedures pertaining to intimation to the Speaker regarding arrest, detention, etc., and release of a member. Further, Section 135A of the Code of Civil Procedure, 1908 provides immunities to the members of all Legislative Houses (Parliament and State Legislatures) from arrests in Civil Proceedings. Further, Section 135A of the Code of Civil Procedure, 1908 provides immunities to the members of all Legislative Houses (Parliament and State Legislatures) from arrests in Civil Proceedings.
Objectives of Parliamentary Privileges in India
The objectives of Parliamentary Privileges can be comprehended from the following points—
I. Collective Privileges
With regards to the Collective Privileges, as the Parliament is one of the most vital democratic institutions entrusted with the very crucial function of law-making for a country, it requires certain special rights and immunities which have been termed here as Privileges to carry out the democratic mandates efficiently. The proper and efficient functioning of Parliament is fundamental to the cardinal notions of democracy. There are multitudinous aspects of such Privileges which can be noted as follows—
a) To ensure efficient functioning and preserve internal autonomy of the House(s): The first and foremost thing that a House of Parliament requires is the right to freedom of speech and expressions in the debates whereby the Parliamentarians collectively become free to discuss anything inside the House without any impediments or external interferences and resolutions, bills, rules, procedures, etc. are passed upon due deliberations expressing the collective opinions of the House for the interest of the public. If such right is not conferred to the Houses of Parliament, its efficient functioning will be obstructed, and the democratic mandates shall be defeated as a result thereof. On the other hand, there are also other things, such as rule-making, powers, publications under Parliamentary authority, etc., that are intertwined with the notions of Parliamentary autonomy. The basic purpose of such immunities is to make the Parliament not answerable to any Court or any other authority outside any House so as to preserve its internal autonomy, which is sine qua non to the efficient functioning of this Parliamentary institution. Therefore, the immunities basically denote immunities from any sort of interferences outside a House for anything done inside that House of Parliament, and all disputes arising out of any discussion, action, or anything taken place inside and under the authority of a House have to be dealt with and resolved within that House only.
b) To vindicate the authority of a House of Parliament and preserve its dignity and supremacy: As the Parliament being the flag bearer of people’s will and expectations discharge the crucial function of legislation, it is often required to vindicate its authority in order to preserve its dignity and supremacy and the privileges, therefore, become necessary for those ends. For the instances of breach of any rule or procedure of a House of Parliament, wilful disregard to the authority of the Speaker or Chairman, abuse of the powers or position by members by any means, contempt of the House by any person, any act by any person that diminishes the dignity of the House or any kind of external interferences, the House is empowered to initiate actions against anyone either inside or outside the House for the breach of privileges on its own by virtue of the Parliamentary Privileges enjoyed by it.
II. Individual Privileges
With regards to the Individual Privileges, as the Parliament consists of its individual members, conferring certain privileges to a House of Parliament alone cannot be sufficient to ensure the efficient functioning of the Parliament. Therefore, the sole purpose of bestowing certain privileges upon the individually Parliamentarians is to enable them to discharge their respective functions without any fear, favor, or any sort of barriers. It is because the essence of representative democracy lies in the individual functioning of the elected representatives of the people. If such immunities are not granted to them, they shall not be able to discharge their Constitutional duties, which will ultimately lead to the defeat of the democratic mandates. For instance, the first and foremost right to which the members of the Houses of Parliament are entitled is the right to freedom of speech and expression in the debates of the Houses. Unless the members of both Houses are bestowed with this right, they shall not be able to perform their duties by expressing their opinions inside the Houses freely because of their constant fears of being liable for legal actions such as defamation, sedition, or any other offenses and it will vitiate the spirits of democracy. Hence, the members have been conferred with this privilege whereby no criminal action can lie against any member of a House of Parliament for anything stated by him during a discussion inside the House. On the other hand, they are also entitled to various other privileges, such as freedom from arrest in Civil matters, etc., in view of enabling them to perform their Constitutional duties without impediments of all sorts.
Comparative Study with other Countries
The ideas of Parliamentary Privileges have been adopted in many other countries of the world as well. In the United States of America, the Speech or Debate clause contained in Article 1 of the US Constitution confers the Parliamentary Privileges to the Senate and House of Representatives, and similar privileges have also been incorporated in the different State Constitutions also. As it is discussed earlier that this idea of Parliamentary Privileges originated from the institution of Parliament during the early days of the British Parliamentary system in England, i.e., the privileges enjoyed by the House of Commons and House of Lords; the earlier undefined privileges became firm and reached a stable condition in 19th century with the certain limits prescribed and recognized by the Parliament. The privileges enjoyed by the House of Commons in England are often considered the broadest privileges in comparison to any other legislature in the world. Parliamentary Privileges are common in those countries whose Constitutions are based on the English Westminster model of Parliamentary government. Likewise, in Canada, British alike Parliamentary Privileges are enjoyed by the Senate and House of Commons along with the provincial legislative assemblies. Similar Parliamentary Privileges can also be noticed in the Parliaments of modern democratic countries inspired by the British Parliamentary Privileges like Australia, New Zealand, Singapore, and South Africa.
Privileges available to the State Legislatures
Article 194 of the Indian Constitution contains the privileges available to the Legislatures of the States. However, the privileges available under this provision are the exact replica of the privileges available to the Parliament under Article 105. Article 194 sets out—
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.
Therefore, privileges of the State Legislatures are also available to the House(s) of the Legislatures of the States (i.e., Legislative Assemblies and Legislative Councils, if available) collectively as well as the individual members of the Houses of the Legislatures, as per the provisions of Article 194, alike the privileges available to the Parliament.
Kinds of Parliamentary Privileges
Parliamentary Privileges in India can be differentiated into the two following categories—
- Privileges expressly conferred by the Constitution
- Privileges other than those expressly conferred by the Constitution
Privileges expressly conferred by the Constitution
Clauses 1 and 2 of Article 105 of the Constitution expressly set out a few privileges to the Parliament, though these are of great significance. Those privileges are as follows—
1) Freedom of Speech
The very idea of the representative democracy is founded upon the free, frank, and fearless discussions by the members of the Parliament in its course of business to ensure that the functionings of the Houses are occurring with due deliberations by the members. The members of the Parliament are absolutely free to express their views, make speeches, and present their arguments in the debates in respect of any matter of discussion during the transactions of Parliamentary businesses. They are immune from any kind of legal actions for anything said or expressed by them during the sitting of the Parliament, which they might have been made liable for in case of saying or expressing something punishable by law. The sole purpose of immunizing the members from legal actions under ordinary laws is to enable them to discharge their Constitutional duties without any fear or favor.
For example, if a member of the House belonging to the opposition party seeks to express his dissenting opinions with regard to the passing of a bill in an ongoing Parliamentary debate and makes some speeches against the ruling government vehemently opposing its agendas behind bringing that particular legislation, such speeches may amount to sedition or other offenses and that member may be made liable to be punished as per the law in ordinary circumstances. But, such speeches are made by that opposition member in due discharge of his Constitutional obligations as a people’s representative in the House, exercising his right to express his dissents fearlessly, and that’s why he has been immunized from any legal actions in the greater interests of electorates with the purpose of subserving the democratic mandates. In contrast, if he had made those speeches outside the House of Parliament, he could have definitely been made liable for the offenses that might have been constituted.
Article 105(1) guarantees the right to freedom of speech to the members of the Parliament. Further, Article 105(2) specifically immunizes the members of the Parliament from being liable to any Court proceedings with respect to anything said or any vote given by them in the Houses of Parliament or any Committee thereof. The ambit of this freedom of speech is quite broader than the right guaranteed to ordinary citizens under Article 19(1)(a) because the freedom of speech under Article 105(1) is not subject to any ordinary laws or any of the exceptions contained in Article 19(2). However, notably, this freedom can only be restricted by the provisions of the Constitution, which includes the rules and standing orders regulating the procedure of respective Houses of the Parliament made under Article 118. That is to say that members of Parliament are only subject to the disciplines of the Speaker and the House in case of Privilege matters.
Along with the rules of the respective Houses, Article 121 [Article 211 in case of State Legislatures] poses a Constitutional restriction upon the freedom of speech of the members in Parliamentary proceedings as it prohibits any discussions regarding the conduct of any judge of the High Courts and Supreme Court in the discharge of their duties, however, such discussions are allowed only in the Houses of Parliament in any proceedings relating to the impeachment of a judge of the Higher Judiciary. This Constitutional restriction is essential to preserve the independence and integrity of the Judiciary. Thus, keeping in view of these restrictions on freedom of speech of the members of Legislatures, it can be undoubtedly comprehended that although the Constitution confers freedom of speech inside the Houses as a matter of an essential privilege to them, it cannot be construed that the same privilege has been granted an unhindered license of speech to them that may lead to the perversion of the fundamental scheme of the Constitution.
Most importantly, the questions as to whether any of the above-discussed Constitutional limitations or any restrictions made under any rules of the Houses upon freedom of speech of the members of the Houses have been contravened or not have to be determined by the Speaker or Chairman of the respective Houses only. The Courts don’t have any say in the privilege-related matters, as a House itself is competent to be the sole judge in such matters, and therefore, these matters are immune from the jurisdictions of the Courts, in view of the first part of Article 105(2). For example, if a member of Parliament makes any defamatory statement about another member of the House or any person outside the House during the sitting of the House, the only legal recourse that can be resorted to bringing an action against that member is to bring a breach of privilege motion in the House, but the defamed victim has no remedy in the Courts like an ordinary case. The Lok Sabha and Rajya Sabha Committees of the Privileges have even held in several cases that filing a suit by a person against any member of Parliament in a Court seeking damages for anything said or done by that member during the sitting of a House may amount to a breach of privileges of the Parliament and such person may be liable for Contempt of the House. It is worthwhile to note that here, Court proceedings include any Civil, Criminal, and even Writ proceedings. It is also held that any derogatory comments made by any member of the Parliament against a High Court or even Supreme Court on the floor of a House during the course of transaction of the Parliamentary businesses shall not amount to Contempt of Court because such comments or speeches are immunized from any action outside the House.
An appropriate reference can be made to a landmark case- Tej Kiran Jain vs. N Sanjiva Reddy. The fact of this case was that some derogatory words were spoken by six members in a discussion held in the House of Lok Sabha against Adi Shankaracharya. The plaintiffs of this case, i.e., his disciples, were offended by those words and filed a suit for damages against those members of Lok Sabha in Delhi High Court. The High Court rejected to grant relief to the plaintiffs, and finally, the matter came before the Supreme Court by an appeal preferred against the rejection of the plaint by the High Court. The Supreme Court dismissed the appeal and upheld the ruling of the High Court. The Court emphasized that—
“Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court.”
In another notable case- PV Narasimha Rao vs. State, the fact of the case was that the ruling Narasimha Rao government was not enjoying majority support in the Lok Sabha. Certain members of the ruling party bribed the members of the opposition party so as to persuade them to vote in favor of the government in order to defeat the no-confidence motion initiated in the House against the ruling party. The bribed opposition members also voted in favor of the government accordingly, and Narasimha Rao’s government was saved. The question arose as to whether the members who bribed and took bribes were liable under the Prevention of Corruption Act, 1988. A five-judge Bench of the Supreme Court, in the majority opinion of a 3:2 ratio, held that the members who were bribed for casting votes in favor of the government and also voted accordingly were immune from the purview of the Prevention of Corruption Act, 1988 in view of the immunity granted to them under Article 105(2), although they might be liable for disciplinary actions by the House for breach of its privileges. But, the members of the ruling party who offered bribes to them and also the opposition members who took the bribes and didn’t vote in favor of the government were liable to be prosecuted under the said Act. However, it is humbly submitted that this ruling might encourage political corruption and defeat the mandates of the democracy and, above all, the Constitution imbued with the ideas of the Rule of Law. The reasons are that, on the one hand, as the life of the ruling government depends upon its majority support in the House of Legislature and any government enjoying popular support may be destabilized by the opposition members by means of bribing the MPs of the ruling party; on the other hand, as happened in the immediate case, a government lacking majority support in the House may be enabled to retain the power in case the members of the ruling party successfully defeat the no-confidence motion by means of bribing the opposition members. These instances are immensely detrimental to the democratic and Constitutional ethos. In the immediate case, the Court further unanimously held that a member of a House of Parliament or State Legislature is a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act but can be prosecuted for corruption without the sanction of any competent authority as no such authority exists in such House competent to remove a member from his office, however, with the permission of the concerned Speaker or Chairman of the House. Whatsoever may be the purposes behind conferring adjudicatory and penal powers to the respective Houses, it is very difficult to accept that those powers will be exercised in independent and impartial manners, for the Parliament is essentially political a political creature, unlike Judiciary.
It can be noticed that the immunities described above are only enjoyable by the members of Parliament inside the Houses during the sittings thereof. The immunities are not available to them for anything spoken by them outside the Houses when the words spoken are in no way connected to the Legislative affairs and essential performance of their duties as members of the Houses. From this aspect, the members of the Parliament and State Legislatures enjoy absolute privileges for anything spoken inside the four walls of the House but enjoy only a qualified privilege for anything spoken outside the House.
2) Publications under Parliamentary Authority
As per the second part of Article 105(2) [Article 194(2) in case of State Legislatures], the same immunities from Court proceedings have also been conferred to the persons, who make publications of any report, paper, votes, or proceedings, but the essential condition is that such publications must be under the authority of the concerned House of the Parliament. Here, the expression- ‘under the authority of the House’ denotes that the prior sanctions by the Speaker or Chairman of the respective Houses are necessary before publishing any report or paper relating to the affairs of the Houses and votes given by the members or proceedings took place on the floors of the Houses. Hence, any publications without the authority of the Houses are not privileged and thereby become subject to the legal actions that can be brought in the Courts against any members of the Houses for anything said or done by them inside the Houses and the newspapers or other publication mediums as well for making publications thereof.
It may be noticed that the history of Parliamentary Privileges with regards to the publications of Legislative proceedings goes back to the early days of British Parliamentary institutions when the publications of the proceedings of the House of Commons were strictly prohibited as absolute secrecy of the proceedings was necessary to enable the members of the House to perform their duties without interferences and fear of the rages of the arbitrary Crowns. Gradually, a transformation came in the conventional practice in the mid-19th century, and the House had done away with those practices and started encouraging the publications of its proceedings with a few restrictions since it realized the advantages of full and clear account of the debates taking place inside the House. Finally, in 1971, the House of Commons had entirely renounced its all privileges with regard to the publications of proceedings. However, in India, the privileges that were enjoyed by the House of Commons before 1971 remain applicable to the Parliament as per Article 105(3) [Article 194(3) for the State Legislatures].
The proper reference can be made to the case- Dr. Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee. The facts of the case were that a member of the West Bengal State Legislative Assembly sought permission from the Speaker of the Assembly to discuss some questions, but the Speaker denied granting permission for the same. Despite the permission being denied, the concerned member of the Assembly thereafter published those disallowed questions in a local journal. A government servant brought legal actions under Sections 500 and 501 of the Indian Penal Code, 1860 for defamation in the Court against that member of the Legislative Assembly along with the editor, publisher, and printer of that journal, alleging that the publication in question contained some scandalous and false imputations against him which were published with the intent of causing harm to his reputations. The Supreme Court ruled that since the questions were disallowed, the publication of those questions in the journal could not be said to have fallen within the purview of the expressions- ‘under the authority of the House of such a Legislature’ and ‘anything said or any vote given by him in the Legislature’ contained in Article 194(2) [Article 105(2) in case of the Parliament]. The Court, therefore, held that the said publication of those disallowed questions in the journal was not privileged, and the legal actions were maintainable in the eyes of the law against the aforesaid persons.
In the famous case- Pandit MSM Sharma vs. Sri Krishna Sinha, also known as Searchlight Case- I, the Supreme Court ruled that publication or reporting of Legislative proceedings of any House, whether with or without the authority of the concerned House, in garbled or inaccurate manners willfully constitutes a breach of privileges of the same House. Further, if the Speaker or Chairman of a House directs to expunge a particular portion of a debate or any particular member’s speech thereof, publication or reporting of that expunged portion of the debate or a speech thereof amounts to a breach of privilege of the House.
A question arose as to whether a fair and faithful report of any debate or anything related to the proceedings of a Legislature published in the press or broadcasted in any News broadcasting medium is privileged from legal actions or not. In the English case- Wason vs. Walter, this matter came up, and the afore-mentioned publications were held to be not actionable if published in fair and faithful manners even though without the authority of the concerned House of the Legislature. The legal position in Britain is, therefore, that only the unauthorized publications of Legislative proceedings, debates, etc. made in distorted manners or published partially (i.e., publications deliberately hiding certain necessary portions of a speech or proceeding in order to attribute a different meaning than the original meaning which such speeches or proceedings actually intended to denote) with the intent to defame someone or causing any other harm to anybody, are actionable in the Courts. However, this position was not initially recognized in India as the Calcutta High Court in the case- Dr. Suresh Chandra Banerji vs. Punit Goala, where a complainant brought an action for criminal defamation against a member of the West Bengal Legislative Assembly for delivering a speech that was highly defamatory for him, and the persons involved in the publication thereof refused to apply the principles laid down in the Wason vs. Walter case. In this case, the publication of the speeches in question was without the authority of the concerned House but was, in fact, fair and faithful publication, i.e., without any malicious intent on the part of the publishers thereof. Here, the Court, although held the speeches of the concerned member of the Assembly to have formed part of the proceedings of the House of the Legislature and, therefore, privileged from the actions in the Court, it found the publishers of the said publication of those speeches liable for defamation.
This confusion was settled by the incorporation of Article 361A to the Constitution by the 44th Constitutional Amendment Act, 1978, and thereby the principles laid down in the Wason vs. Walter case were given Constitutional recognition in India. Article 361A sets out that “no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, unless the publication is proved to have been made with malice.” Yet, these immunities apply to the publications by Newspapers only and have been extended to Air broadcasts but are inapplicable to the other types of publications such as an article or comment on any proceedings of a House, pamphlets, books, etc. It is too obvious that this immunity doesn’t extend to any publication of secret sittings of any House of the Parliament as well as State Legislatures as per the proviso appended to clause 1 of the said Article. Alongside the said proviso of Article 361A, Rule 252 of Lok Sabha Rules also makes the disclosure of proceedings or decisions of a secret sitting of the House any person in any manner a gross breach of privilege of the same House.
It can also be perspicuously observed that the Parliamentary Privileges curtail the freedom of the press to some extent as the press cannot freely publish or report anything relating to the Parliamentary affairs infringing the privileges enjoyed by the respective Houses, for such infringements of their privileges are likely to make the press liable for the contempt thereof. As the current position stands, besides the recognized privileges described above, there are also a number of privileges in respect of the publication or reporting of the proceedings of the respective Houses of Parliament as well as the State Legislatures, which have been claimed in time to time and a few of those privileges can be enlisted as follows—
- Misreporting or misrepresentation of the reports of a Parliamentary Committee by any Newspaper;
- Disclosure or publicizing of any report or recommendations made, the conclusion arrived, and proceedings in the meetings by a Parliamentary Committee which ought not to be published before the same has been presented in a House;
- Publication of any document, information, or paper concerning any specific matter presented to a Parliamentary Committee while the same matter remains under active consideration by the Committee before the report or recommendation made or conclusion arrived by the same Committee is tabled before a House;
- Premature publication of motions tabled before a House; and
- Disclosing the proceedings held in a secret sitting of a House.
3) Internal Autonomy
As per Article 122 of the Constitution [Article 212 in case of the State Legislatures], the proceedings within the walls of both the Houses of the Parliament are immune from the jurisdictions of the Courts. It poses a Constitutional bar on judicial review of the proceedings held in the Houses of the Parliament on the ground of any alleged procedural irregularities with the sole purpose of preservation of the autonomies of the Parliamentary institutions in dealing with the internal affairs of the respective Houses. Only a House has exclusive jurisdiction in all matters in respect of the dealings of its internal affairs, and its decisions are final and binding upon every member of the House. Article 122(2) also immunizes the officers or members of each House of Parliament who are empowered to regulate procedures or the conducts of the business or for maintaining orders in the respective Houses from being answerable to any Court for anything done by them in the due exercise of those powers.
Each House of the Parliament can itself suspend any rule made by it dealing with any procedure in its application to a particular business before it. The validity of any Proceeding of a House cannot be challenged in any Court on the ground of mere irregularity of procedures in case it deviates from any of its rules, doesn’t adhere to the rules dealing with the procedures, or suspends any such rule. The Chairs of each House thus enjoy absolute autonomies in the dealings of the conduct of businesses in the concerned House by virtue of the authorities vested in them by the Constitution, and they are not supposed to submit themselves into the jurisdictions of the Courts to answer any question for any act done by them or any decision taken by them in due discharge of their Constitutional duties by virtue of the authorities vested in them. For instance, a Speaker or Chairman of the Lok Sabha or Rajya Sabha, respectively, cannot be sued for damages for wrongful confinement in case any person is imprisoned under the warrant of the concerned presiding officer of a House for committing Contempt of the House.
Evidently, even the Supreme Court and High Courts cannot exercise their Writ Jurisdictions under Articles 32 and 226, respectively, in the matters involving the proceedings of any House of the Parliament or anything falling within the autonomous exercise of the functions thereof. Therefore, a writ of prohibition cannot be issued against the Chair or any other officers of any House to restrain the concerned House from passing any particular bill in the House, even if the same proposed legislation is contrary to the provisions of the Constitution. Similarly, a writ of prohibition cannot be issued against any member of the House to restrain him from introducing any bill in the House with the aim of making it a legislation. If the legislative proceedings are so immune from the interferences of the Courts, a natural doubt may arise as to the application of the doctrine of Judicial Review to adjudge the Constitutional validity of the legislative actions; that is to say that in which stage, a legislation becomes subject of judicial scrutiny? This point can be clarified in this way that judicial scrutiny becomes applicable only to a full-fledged law, i.e. when a bill becomes a law after going through all the stages of its making. When a law remains in the premature stages of the procedure of its making, such as if it has been passed by one House only and yet to be passed by another House or passed by both the Houses and yet to receive the assent of the President, it doesn’t become the subject of judicial scrutiny.
Likewise, the Committee of Privileges of a House cannot be restrained by issues of the writ of prohibition from enquiring into a breach of privilege matter presented before it, as the similar privileges available to the Houses are also available to the Committees thereof. However, it is not clear whether a writ of habeas corpus can be issued or not against a House in case any person is detained under the warrant of the Speaker or Chairman of the House for committing the Contempt of the House.
The same legal positions as discussed above identically apply to the cases of the State Legislatures in the context of the exercise of the absolute internal autonomies as per Article 212, in the exclusion of the judicial interferences.
Another doubt may arise as to whether the internal autonomy of a House of Parliament is so unimpeachable that it has to be kept immune from the purview of all sorts of judicial scrutiny all the time, even when there is the evident presence of substantial illegality in a particular legislative proceeding or the act of the Speaker or Chairman with regard to the same proceeding. The Supreme Court, in the landmark- Re Keshav Singh’s case clarified this doubt and answered it in negative. The Apex Court, while tendering its advice to the President exercising its advisory jurisdiction under Article 143, boldly asserted that the internal autonomy of the Houses of the Parliament, as well as the State Legislatures, cannot be construed in the sense that the Legislative institutions are authorized to conduct any business or proceedings, take any action or decide any matter in respect of the internal affairs of the Houses in whatever manner they wish in the pretext of the exercise of their authorities by virtue of internal autonomy. Hence, there cannot be any blanket immunity from the judicial review of the legislative businesses, and in any case, there is substantial illegality or unconstitutionality of such businesses, the Courts can interfere, keeping in view the greater interest of the preservation of the Constitutional scheme from going it astray. Therefore, the only condition to enable the Constitutional Courts to employ judicial scrutiny in such matters is that the alleged illegality or irregularity in procedure must be more than mere illegality or irregularity. Whether any deviation from the established procedure of a House amounts to substantial illegality or mere irregularity in a proceeding or action often depends upon the nature of the Constitutional provision stipulating a particular procedure to be followed in such proceeding or action. If the provision is mandatory in nature, its contravention may amount to substantial illegality in a proceeding. But, in case a provision is a mere directory, its contravention may amount to mere irregularity in the proceeding. A slight deviation from an established procedure does not ordinarily amount to substantial illegality, and it does not vitiate the entire proceeding or action of a House. The Court further emphasized that if any act or decision of the Speaker or Chairman of a House is prima facie found to be mala fide, the same cannot be immune from judicial scrutiny. This ruling highlights a very crucial role of the Judiciary as per the principles of checks and balances in the Indian Constitutional framework to keep the other two wings of the government within their Constitutional limits. In the case- State of Punjab vs. Sat Pal Dang, the Speaker of the Punjab Assembly adjourned the proceedings of the House even though he was not authorized to do so vide an Ordinance in force. The Supreme Court held that the ruling of the Speaker on the validity of the Ordinance couldn’t be considered final and conclusive. Further, the Court ruled that the Speaker of a House cannot claim any privilege or immunity from interferences of Courts if he acts in utter contravention of legal and Constitutional injunctions.
4) Rule-making powers of the Houses
Each House of the Parliament is conferred with the powers under Article 118 of the Constitution to formulate its own rules to regulate its own procedures, the conduct of businesses, and other internal affairs. Similar powers are also conferred to the State Legislatures under Article 208. The rule-making powers are exclusively exercisable by the Legislative Houses as a matter of privilege. However, the rules made under the afore-mentioned Constitutional provisions by the Legislative Houses are subject to the provisions of the Constitution itself; that is to say that no House is empowered to make rules in contravention of the Constitutional injunctions. It is relevant to note in this context that the procedure or conduct of businesses of a House are regulated by the provisions dealing with the same as expressly provided in the Constitution, rules made by the House exercising the rule-making powers, directions issued by the Chair of the House, and conventions, traditions or past practices.
Privileges other than those expressly conferred by the Constitution
Other than the privileges expressly conferred by the Constitution, the Houses of Parliament and State Legislatures also enjoy uncodified privileges. Article 105(3) [Article 194(3) in case of State Legislatures] sets out that the Hoses of Parliament shall also enjoy such privileges as may be conferred to them by any law made by the Parliament. It is because the Constitution framers preferred not to enlist all the privileges exhaustively in the Constitution as they foresaw the need for new privileges with the changes of time. Further, before the 44th Amendment Act, 1978, the position in India with regards to such uncodified privileges as per the latter part of clause 3 of Article 105 was that the Parliament used to enjoy only those privileges which were enjoyed by the House of Commons in England at the time of commencement of the Constitution, i.e., January 26, 1950, until the Parliament itself had made laws defining such privileges as might be necessary from time to time. However, such explicit reference to a certain thing of another country in the Constitution of a sovereign country had been considered inconsistent with the notions of sovereignty, and the 44th Constitutional Amendment Act removed that phrase containing such express reference to the privileges available to the House of Commons. In fact, the position as of now is exactly the same as it was before the said Amendment; that is to say that the same privileges enjoyed by the House of Commons on the date- 26th January 1950 are still enjoyed by the Houses of Parliament. The same provision also applies to the State Legislatures as per Article 194(3). It is very natural that the Legislative Privileges that are recognized or claimed by the House of Commons after the commencement of the Indian Constitution are not applicable in India.
Those uncodified privileges can be elaborately discussed in the following headings—
1) Disciplinary powers over the members
As discussed earlier, one of the basic purposes of conferring a number of privileges to the Parliament and the State Legislatures is to enable the respective Houses to vindicate their authority so as to preserve their dignity and high stature in the public eyes, which is necessary, for the foundation of democracy lies in the public faith upon the all democratic institutions and moreover, the Legislature being the first pillar of democracy possess much higher obligation to upkeep that faith. For that purpose, like any other democratic institution, the Parliament and State Legislatures have to maintain disciplines to ensure the orderly conduct of their businesses. It is obvious that certain disciplinary powers must be vested upon the respective Houses to maintain the disciplines therein, on the one hand, to vindicate their authorities and, on the other hand, to preserve the internal autonomies thereof.
Either House of the Parliament is empowered to enforce disciplines in the concerned House by punishing them for any conduct, whether committed inside or outside the House, which is unbecoming or grossly derogatory to the highness and standards of the House, making the concerned member unfit in the eyes of that House for the membership of the same House. The punishments can be effected in various means such as ordering expulsion, or suspension from their memberships of the House, giving reprimand, even issuing a warrant for imprisonment in extreme cases, and also using such force that may be absolutely necessary for a given circumstance of a case. A House itself is the competent authority acting in judicial capacity to take the disciplinary actions in the given circumstances to punish its members in such cases, and the decisions taken thereby are deemed absolute as the powers are exercisable by such House to the exclusion of the jurisdictions of the Courts.
In a significant incident, when the Janta Party was in power between 1977 and 1980, former Prime Minister of India Smt. Indira Gandhi was found guilty of breach of privilege of the House of Lok Sabha on the ground of her certain acts committed while holding the position of the Prime Minister till her defeat in the 1977 General Election and was sentenced to imprisonment, which terminated with the prorogation of the House a week later.
In this context, it is pertinent to look into the following distinctions between the types of disciplinary actions that can be taken against any offending member and a few instances of their applications—
a) Expulsion and Disqualification: In both cases, a person ceases to be a member of a House. The Supreme Court differentiated these two terms in the case- Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha in the words of noted jurist MP Jain that “while disqualification strikes at the very root of the candidate’s qualification and renders him or her unable to occupy a Member’s seat, expulsion deals with a person who is otherwise qualified, but in the opinion of the House is unworthy of membership.”
Thus, if a member is expelled from a House, such expulsion results in the vacation of the seat of the member concerned in the House, but it doesn’t disqualify him from becoming a member of the House again after being re-elected. However, disqualification has no application in case of breach of the discipline of a House by any of its members.
For instance, the action of expulsion was taken against Subramanian Swamy by Rajya Sabha in November 1976 for his conduct which was deemed inconsistent with the standards of the House.
b) Suspension: The Speaker or Chairman of a House has the power to suspend any member thereof for a day on the ground of his grossly disrespectful conduct. In extraordinary cases, a member of a House can be suspended by a breach of privilege motion initiated in the concerned House. Even though the defaulting member continues to be a member of the House after being suspended, he is made debarred from participating in the businesses or meetings of a House temporarily for a specific number of days, not ordinarily exceeding the rest of the session. The House can also terminate any such suspension of any member at any time it wishes. This type of disciplinary action is very common in the conduct of regular businesses of the Houses of Parliament and State Legislatures.
c) Grounds for making a member of a House liable for disciplinary actions: Although the grounds on which a member of a House can be held liable for various disciplinary actions cannot be exhaustively enumerated, a few of those offending conducts of the members can be as follows—
- Casting reflections on the impartiality of the Chair in the discharge of his Constitutional duties;
- Undermining the authority of the Chair;
- Committing deliberate acts with the intention to persistently obstruct the regular functioning of the House;
- Flouting the rules of the House ensuing the gross disruption in the efficient functioning of the House;
- Walking-out from the House as a symbol of protest against any action or decision taken, or bill passed by the House; and
- Any other grossly undignified and disorderly conduct or abuse of the position that makes a member unworthy of the membership of the House.
It is also held that furnishing wrong information in a House in respect of anything willfully to mislead the House amounts to a breach of its disciplines.
d) Justiciability of the disciplinary actions over the members: There has been a long-standing question as to the justiciability of the disciplinary actions taken by the Houses of Parliament and State Legislatures against the members thereof. The Supreme Court dealt with this question multiple times. The Court stressed the limited scope of judicial scrutiny of the actions or decisions taken by the Houses, notwithstanding the internal autonomies thereof. The Court followed the same ruling in the case- Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha, 10 MPs of the Lok Sabha were found guilty of breach of privileges of the House for dishonestly accepting money for raising certain questions in the House and giving some favors to those offering such lucre. The House adopted motions for breach of its disciplines against those defaulting MPs, and they were accordingly expelled from the House. The expelled MPs contended that the decision of their expulsion was influenced by political motives and mala fides, and they were not also afforded reasonable opportunities to be heard. All the contentions were in clear contravention of their fundamental rights under Articles 14, 20, and 21 of the Constitution. The matter reached the Supreme Court. The Court rejected the contentions of those MPs and upheld their expulsion. The Court further held that the disciplinary powers of the respective Houses under Article 105(3) are uncontrolled by their powers under Article 102 relating to the disqualification of the members thereof. It can be said that the Court, in this ruling, has accepted the justiciability of the disciplinary actions taken by the respective Houses over the members thereof to some extent.
2) Power to punish for Breach of Privilege or Contempt of House
The powers of a House of Parliament or State Legislatures to punish for its contempt are analogous to the powers of a superior Court to punish for its contempt. As it is discussed earlier as well that any indiscipline, undignified behavior, defiance of the authority of a House of Parliament or State Legislatures, or any act lowering the prestige of the House, whether committed inside or outside the House, by members or non-members thereof, obstruct the proper functioning of the House and thereby constitute a breach of the privileges enjoyed by it, each House of Parliament (as well as State Legislatures) is vested with the powers to punish any person whether a member or non-member of a concerned House for any alleged Breach of its Privileges or Contempt thereof. Alike the disciplinary powers over members, these powers to punish for the Contempt of a House too have been enjoyed for the purpose of vindication of its authority and honor.
A distinction can be drawn here between the powers of a House to take disciplinary actions over its members (as discussed in the preceding point) and the powers to punish for its Breach of Privilege or Contempt. The obvious distinction is that the disciplinary actions can be taken against the members of a House only (for committing any breach of privilege of the House inside or outside the same), whereas the Contempt actions can be taken against anybody, whether a member or non-member (for committing any breach of privilege of the House inside or outside the House). But, both the disciplinary and contempt actions have the same purpose, i.e., to punish the persons who commit the breach of privileges of the concerned House. It is explicit that the ambit of the powers to punish for Contempt of a House is broader than that of its disciplinary powers over its members. It is also noticeable that basically, the phrase- ‘Breach of Privilege’ is inclusive of ‘Contempt of the House’ because a breach of privilege of a House does not only include any specific or recognized privilege but also includes anything that undermines the dignity or authority of the House.
The powers of each House of Parliament (and State Legislatures) to punish for its contempt are often described as the ‘keystone of parliamentary privilege’. The Contempt powers are exercised by imposing various punishments such as reprimand, admonition, suspension of the officers from the services of the House for a session, suspension or expulsion of the members, imposition of fine, and also sentencing to imprisonment. Such actions are taken against any person who does any act or omission that directly or indirectly tends to obstruct any members or officers of a House from discharging their Constitutional obligations and thereby ultimately, in any manner creating impediments in the way of the functioning of the businesses of the House. Due to the broad scope of the contempt powers, it is often thought that the grounds on which a person can be held guilty for contempt of a House are quite vague, as the same grounds have not been yet explicitly codified anywhere. Moreover, the decision as to whether a particular act or omission of anyone in a given situation amounts to contempt of a House or not depends upon the discretion of the Speaker or Chairman thereof. While exercising the powers of the Contempt of House, the Speaker or Chairman acts in a judicial capacity, and Courts ordinarily do not have any say in such cases. The Speaker or Chairman can summon the contemnor to the bar of the House to answer a charge of contempt of it leveled against him. Usually, a House gives reprimands to a contemnor and drops the charges against him after due admonitions if he tenders an unconditional apology to the Chair. The Houses very rarely resort to other severe punishments to punish a contemnor. The exercise of these contempt powers has become the subject of conflicts between the Legislature and Judiciary most of the time. The grounds for punishing a member of a House for his undisciplined activities inside or outside the House, as discussed in the preceding point, can also be grounds for punishing him for Contempt of the same House. On the other hand, a few of the grounds on which even a non-member (outsider) of a House can be held guilty for its contempt are as follows—
- Making statements publicly casting reflections on the proceedings of the House, or the character of the officers, an individual member, or the members collectively and thereby lowering the honor of the House in the eyes of the public;
- Attempting to intimidate, exert influence, or coercion upon the members of the House to get any unlawful or unjust personal or political gain;
- Misreporting or misrepresentation of any proceedings of a House or any speech of a member thereof;
- Ridiculing a member for any speech made by him inside the House;
- Casting aspersions on the impartiality of and attributing mala fides to the Speaker or Chairman of the House;
- Publishing an article undermining the very foundation of the Parliamentary system of government;
- Filing a writ petition, any suit or action in a Court against the Chair or any officer of the House for any decision taken by the House by virtue of the privileges conferred to it;
- Premature publication of a report of the Committee in respect of any particular matter before the same is tabled in the House;
- Bringing any suit or criminal action in a Court against any individual member of a House for any statement made or anything done by him on the floor of the House during its sitting; and
- Any act that tends to bring the institution of Parliament into disrepute or disrespect in entirety.
Significantly, a House can also commit a person into custody as a punishment for its contempt. However, the term of such imprisonment sentenced by a House cannot extend to any period beyond the duration of the existing session of that House in which the order of the sentence was made. Therefore, a prisoner sentenced by a House for its contempt becomes entitled to be released automatically if the House is prorogued or dissolved, whether the total specified term of imprisonment be completed or not. This type of punishment is awarded in extremely rare cases when an act in question is seriously contemptuous and derogatory to the entirety of the Parliamentary institution.
The exercise of the penal powers, especially that of the powers to commit a person into custody by the Legislative Houses, and the opaqueness of the grounds on which a person can be held liable for the contempt of a House have been subjects of confusion and controversies for several times. In a democracy, dissents being the lifeblood of it, work as a safety valve and have to be given place. Therefore, it is never desirable to invoke the penal jurisdictions of a House in the name of the breach of its privilege or its contempt to stifle the free speech of the dissenters or to use the penal powers with mala fide intent to achieve any political and other ends. The ordinary procedures of the criminal justice mechanism are rarely followed, and also, the ordinary legal and procedural safeguards which are normally available with an accused are hardly available with a person accused of contempt of a House because of the immunities enjoyed by each House from the interferences of the Courts, or any other independent body. Furthermore, each House acts as a judge of its own cause, for the same being always likely to prejudice any person accused of contempt of a House. In view of these aspects, these contempt powers are expected to be used very sparingly in cases of absolute necessities to prevent serious hindrances in due discharge of the Constitutional obligations vested in the Houses. The contempt powers are also expected not to be used when remedies are already available under ordinary laws.
3) Committee of Privileges
Every House of Parliament has a Committee of Privileges as a recommendatory body to the respective Houses in matters involving privileges vested in them. Each Committee essentially acts like an adjudicatory body, and its sole functions are to examine the questions referred to it concerning privilege matters, and determine whether any breach of the privileges enjoyed by the respective Houses has been committed or not in the given facts and circumstances of the cases, and advise the respective Houses in respect of those privilege matters, nature of any breach of privilege if occurred and also the powers exercisable by those Houses to uphold the privileges vested in them. The Privilege Committee of Rajya Sabha consists of 10 members nominated by the Chairman, and the Committee of Lok Sabha consists of 15 members nominated by the Speaker. Each Committee can enquire into any privilege matters as may be referred to it either by the Speaker or Chairman of the respective Houses suo motu or by the Houses upon the privilege motions adopted therein. The Committees are also empowered to call for oral or documentary evidence in relation to the privilege matters under its active considerations and also administer oath or affirmation of the witnesses examined before it.
The concerned Privilege Committees can make any recommendations from time to time as it may deem proper and can also state in its report any specific procedure to be followed to implement the recommendations thereof. The reports and the recommendations made by the Committees are presented before the concerned Houses, and the Houses take appropriate actions on those reports or recommendations. It is noteworthy that the reports or recommendations made by the Privilege Committees are not binding upon the respective Houses, as it is up to the respective Houses whether to accept, modify or reject any reports or recommendations made to it. Privilege Committees are also there in the State Legislature, and they are also entrusted with functions similar to the Privilege Committees of the Houses of Parliament. As the Privilege Committees discharge the adjudicatory functions in matters relating to the breach of privileges of the Houses, the Committees are expected to discharge their functions with objectivity by applying the judicial approaches in independent, unbiased, or non-partisan manners to being free from the political influences or other prejudices and by embodying the time tested principles of natural justice, procedural due process together with the other fundamental principles of the criminal jurisprudence into the proceedings thereof.
4) Privileges of members with regards to the Arrests
The members of Parliament have been granted special privileges with regards to their arrests, whether in Civil or Criminal cases, with the purpose of ensuring their safe arrival and regular attendance in the proceedings of both Houses, for the same being essential to the efficient and unimpeded functioning of Parliamentary businesses and also to uphold the dignity of the Parliamentary institutions. According to Section 135A of the Code of Civil Procedure, 1908, the members of each House of Parliament, as well as the State Legislatures or Legislative Assemblies of Union Territories, enjoy immunities from arrests in any Civil proceedings. Such immunities are only available to the members during the continuance of a meeting, joint sitting, conference, or joint Committee of a House and also within a period of 40 days before and after a session of any House of either Parliament or Legislatures of States and Union Territories. Identical immunities from Civil arrests have also been granted to the members of the Committees of either House of the Parliament and Legislatures of the States and Union Territories. However, the same protections from arrests don’t apply to the arrests of members of Parliament on any Criminal charge. The same protections from arrests are also not available to the members in case such arrests relate to any charges of Contempt of Court and Preventive detention. An arrested member of a House is not entitled to attend the meetings or proceedings of the House. Yet, there are certain protocols that must be followed whenever a member of any Legislative House is arrested or imprisoned by a Court, whether in a Civil, Criminal or other cases, and failure of the implementation of those protocols by any authority concerned may constitute a breach of privilege of the concerned Legislative House. Some of those protocols are as follows—
- As per the Lok Sabha Rules (Rules 229 to 233), the details of arrest, conviction, imprisonment, or preventive detention of a member of the House of People, including the place of detention or imprisonment and also the offense committed by him, have to be intimated to the Speaker;
- The fact of the release of a member of a Legislative House on bail after being convicted for an offense has to be communicated with the Speaker or Chairman of the House;
- The executive or any other authority is duty-bound to grant access to a detenue member of a Legislative House to correspond with the concerned House and Privilege Committee thereof; and
- Every Legislative House has authority to enquire about the conditions of its members under detentions, facilities afforded to them, and other information associated with the same.
5) Privileges as to the Inquiries
The Houses of Parliament and the State Legislatures are vested with the powers to conduct inquiries in matters associated with the internal affairs thereof as a matter of privileges. A Legislative House, in the exercise of these powers, may call for the attendance of witnesses for the purpose of any inquiry instituted in respect of a matter by the concerned House. Such privileges of a House as to the powers of inquiries become most relevant when the House institutes inquiries and initiates actions for the contempt in the matters relating to the breach of privileges of the same House. The Committees of the respective Houses also exercise the powers of inquiries by ordering the production of documents, papers, records, and the physical appearance of persons before them, along with administering oaths or affirmations to them before their examination. Alike any other obstructions in the functioning of a House or any Committee thereof amount to breach of privilege of the concerned House, any obstruction in the way of exercising the powers of inquiries by a House or any Committee thereof also constitutes the breach of privilege of the same.
6) Freedom from involvement in Court proceedings
The members of either House of Parliament and the State Legislatures during the session of any House are not bound to produce evidence and appear as witnesses in any legal proceedings of Courts. This privilege is based upon the idea that attendance and service of a member of any Legislative House must be given paramount importance.
7) Privacy of debates
In the secret sessions of a House of Parliament or State Legislature, the meetings of the House are required to be held in camera to maintain absolute secrecy of the discussions held in such meetings within the four walls of the House. Such meetings of a House of Parliament behind closed doors are mostly held to discuss the matters involving security, internal peace, and stability of the nation or any other matter about any particular subject when the prevailing circumstances demand the non-disclosure of the same for the interest of the general public. In such sessions, a House can order the withdrawal of strangers from the House either for the entire or any specific duration of a session or meeting, as the Speaker or Chairman of the House may deem necessary.
Role of Courts in the Interpretations of Privileges
Previously, various questions also arose as to how far the Courts can interfere with the matters of Parliamentary Privileges. There are many instances of conflicts of Legislature with the Courts in the matters relating to Parliamentary Privileges in Britain. Lastly, a stable position in this regard was brought into existence in the noted English case- Stockdale vs. Hansard wherein a few propositions were laid down as to whether the Courts can interfere in the Privilege matters and if the answer is positive, then up to what extent such interferences can be justified. In the Searchlight- I case, the Supreme Court laid down the propositions in this regard, majorly following those propositions laid down in Hansard’s case. The settled position in India concerning it is that the Courts, being vested with the sole authority to interpret the Constitution and the laws as per the Constitutional scheme, are authorized to determine every question as to the existence of any privilege. That is to say that the Courts can decisively determine every question connected to the facts that whether any particular privilege claimed by a Legislative House is Constitutionally or legally available to such House or not. Once it is established that such a privilege exists, the questions as to whether that existing privilege has been breached or not in given facts and circumstances of cases have to be left to the decision of the concerned House. The Courts cannot decide any question as to whether a certain act of someone in a given fact and circumstance of a case amounts to a breach of any privilege of a House. A House itself is the competent authority to decide the question conclusively.
Further, Courts also cannot sit in appeal of any decision made by the Legislative Houses in the Privilege matters. The doctrine of judicial review can be employed in the actions taken relating to the Privilege matters by the Legislative Houses up to a limited extent, as held in Keshav Singh’s case. In the said case, the question as to whether the powers of the Legislative Houses to punish someone for contempt or to commit him into custody are subject to judicial review or not has also been elaborated.
Relations between Fundamental Rights and Parliamentary Privileges
A significant question arose several times as to whether the Parliamentary Privileges are subject to the Fundamental Rights contained in Part- III of the Constitution or not. The Supreme Court clarifying the stand answered the similar questions that came before it in the following notable cases—
1) Gunupati Keshavaram Reddy vs. Nafisul Hasan & State of UP: The editor of a newspaper called Blitz allegedly published news casting derogatory aspersions on the Speaker of the UP Legislative Assembly, and he was summoned to appear and explain the position to the Privilege Committee of the House. When he disobeyed the summons and didn’t respond to the inquiries instituted by the Privilege Committee, the Speaker issued a warrant against him, authorizing his detention for contempt of the House. He moved a Habeus Corpus petition under Article 32 to the Supreme Court. The Court released him, holding that his detention was violative of his fundamental right against arbitrary detention envisioned by Article 22(1) of the Constitution, as he was not produced before any nearby magistrate after his arrest. In this case, the Court definitely took the stand that Legislative privileges are subject to Fundamental Rights.
2) Pandit MSM Sharma vs. Sri Krishna Sinha(also known as Searchlight case- I): A newspaper called Searchlight published the entire speech of a member of Bihar Legislative Assembly made by him inside the House, including the portion of the speech which the Speaker ordered to expunge. The concerned House summoned the editor of the newspaper to answer the charges leveled against him for committing a breach of privilege of the House. He approached the Supreme Court by filing a writ petition under Article 32, contending that the said action of the Assembly infringed his fundamental right to freedom of speech and expression under Article 19(1)(a) and also his right to life and personal liberty under Article 21, and he sought remedy for the same. The Apex Court rejected the contentions and also refused to accept the earlier ruling in Gunupati’s case, holding the same not binding for not being a considered opinion. The Court observed that Article 194(3) and 105(3) had not been made subject to the provisions of the Constitution, and therefore, those provisions are as supreme as the fundamental rights are, and any conflicts between the fundamental rights and the Legislative privileges have to be settled by the aid of the rule of ‘harmonious construction’. The Court specifically ruled that Article 19(1)(a) doesn’t control Articles 194(3) and 105(3), for Articles 105(3) and 194(3) being special provisions must prevail over the general provision of Article 19(1)(a). The Court further rejected the contention of curtailment of the petitioner’s right under Article 21, ruling that the rules made by the Houses exercising rule-making powers under Articles 118 and 208 of the Parliament and State Legislatures, respectively, fall within the ambit of the phrase- ‘procedure established by law’ and hence, any action taken by a House exercising the powers conferred to it by the rules made by itself, cannot be treated to be inconsistent with the inviolable injunctions of Article 21.
In the aftermath of the ruling, when the Committee of Privileges of the Bihar Legislative Assembly, the same petitioner again approached the Supreme Court (in Searchlight- II case) seeking reconsideration of its earlier ruling of Searchlight case- I, but the Court dismissed his petition and reaffirmed its earlier position. Thus, the Searchlight rulings somehow depicted the Supreme Court to be observant of the absoluteness of the Legislative Privileges over any other Constitutional provisions.
3) Re Keshav Singh: The tussles between Legislature and Judiciary in respect of the exercises of contempt powers by the Legislative bodies to punish any person for committing any breach of their privileges reached the high-water mark in this case. In this case, the contemnor Keshav Singh, printed and published a pamphlet against a member of the UP Legislative Assembly, and he was found guilty of contempt of the concerned Assembly. The Speaker sentenced him to be reprimanded and summoned him to appear before the House. When the Speaker was giving him a reprimand, he showed some objectionable conduct disrespecting the authority of the Chair, and he was subsequently sentenced to imprisonment for his grossly contemptuous behavior before the House. A legal practitioner named Solomon filed a Habeas Corpus writ petition under Article 226 in the Allahabad High Court, contending that the imprisonment of the contemnor, Keshav Singh was illegal, out of mala fides, and in contravention of the natural justice and a two-judge Bench of the Allahabad High Court granted interim bail to the contemnor. The House passed a resolution holding Keshav Singh, his legal practitioner Solomon and two judges of Allahabad High Court who granted the interim bail order to Keshav Singh guilty of committing the contempt of the House and ordered them to be brought before the House in custody. Those two judges of Allahabad High Court moved a writ petition under Article 226 in the same High Court, contending that the resolution of the Assembly sentencing them to imprisonment was unconstitutional in entirety for directly contravening Article 211 [Article 121 in case of Parliament] of the Constitution. Further, they hadn’t committed contempt of the Assembly by accepting the Habeas Corpus petition of Keshav Singh because, for holding the offices as the judges of the High Court, they were exercising the writ jurisdiction vested in them under Article 226 and thereby discharging their Constitutional duties. A full Bench of 28 judges of Allahabad High Court ordered a stay on the enforcement of the said resolution of the Assembly until the said petition was disposed of. Thereafter, the House passed another resolution clarifying that all the persons, including those two judges who were adjudged guilty for contempt, would be provided with reasonable opportunities to explain the charges before the House, and the actions would be initiated only after hearing them if the charges were proved. Accordingly, the arrest warrants issued against two judges were withdrawn, and the House made it obligatory for them to appear before it and explain the contempt charges against them. The implementation of the clarificatory resolution of the Assembly was also stayed by the Allahabad High Court. Thus, this situation witnessed a complete Legislature-Judiciary deadlock which entails extremely pernicious consequences for the fundamental ideas of democracy and the Rule of Law in a country.
The then-President of India referred this matter to the Supreme Court for opinion invoking the Court’s ‘Advisory Jurisdiction’ under Article 143. The Supreme Court, in 6:1 majority, held that those two judges didn’t commit contempt of the concerned House by granting the interim bail order as they were competent to entertain the said writ petition by virtue of the jurisdiction conferred to them under Article 226 of the Constitution. Accordingly, advocate Solomon was not guilty of the same charge as he too was acting as per his professional ethics as a legal practitioner and due discharge of the Constitutional and legal obligations vested in him by defending his client to protect his fundamental rights. Undoubtedly, the acts of the judges and the advocate in this immediate case must be uncontrolled by Article 194(3) [Article 105(3) as well], for the same being absolutely necessary to enforce the fundamental rights of the citizens and preserve the Rule of Law in the country. Even Keshav Singh was also not liable for the contempt of the House for moving a writ petition in the High Court because the right of a citizen to approach the judicature in case of curtailment of his fundamental or any rights is uncontrolled by Article 194(3) [105(3) as well], for the same itself is a fundamental right under Article 32. Rather, it was the Assembly itself that was incompetent to order their committal into custody and production before the House to answer the contempt charges. Most importantly, the actions against the judges were unconstitutional on the ground that the discussions in a House on the conduct of any judge of High Court or Supreme Court while discharging his Constitutional duties are expressly forbidden under Article 211 [Article 121 as well], for the same being an indispensable facet of independence of Judiciary. Therefore, Article 194(3) [Article 105(3) in case of Parliament] doesn’t empower a House to initiate contempt actions against any judge of the Constitutional Courts for any act while discharging his Constitutional duties.
The Supreme Court notably stressed the necessity of working hand-in-hand with three major wings of democratic governance, i.e., Legislature, Executive, and Judiciary. In the words of MP Jain, the observation of the Court was—
“The keynote of the Court’s opinion is the advocacy of harmonious functioning of the three wings of the democratic state, viz, Legislature, Executive and the Judiciary. The Court emphasized that these three organs must function “not in antinomy, nor in a spirit of hostility, but rationally harmoniously.” Only a harmonious working of the three constituents of the democratic state will help the peaceful development, growth, and stabilization of the democratic way of life in this country.”
The Court’s observations on the effects of Parliamentary Privileges on Fundamental Rights: The Apex Court, in the immediate case, clarified its stand that the Fundamental Rights regulate Articles 105(3) and 194(3). In Searchlight case- I, the Court only excluded the application of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) from the arena of Parliamentary Privileges. Nevertheless, Article 21 definitely regulates Parliamentary Privileges as Article 21, read with Article 14, outlaws every kind of arbitrariness, which is the sole antithesis of the Rule of Law. However, the positions in respect of the applications of other fundamental rights in the Privilege matters are not clear as of now.
The Court’s observations on the application of Judicial Scrutiny in matters relating to the exercise of Powers to punish for its Contempt: The Court rejected the contention of the Assembly that a House has unfettered powers to commit any person into custody for its contempt, for being immune from the judicial scrutiny. Thus, the Court significantly declared that the invocation of penal jurisdiction of a Legislative House and especially the powers to commit a person into custody for its contempt are not totally excluded from the scope of judicial review, and limited judicial review is applicable in such cases. The Court pointed out that the absolute powers enjoyed by the House of Commons in England to penalize or commit anyone into custody for its contempt are not applicable in the Indian context because—
- In England, the House of Commons enjoyed such privileges as a Superior Court of Record as well as the Supreme Legislature in the land. But unlike the position in England, the separation of powers is very clear in the Indian context where neither the Parliament nor State Legislatures act as the Superior Courts of Record.
- England has an unwritten Constitution, whereas India has a written Constitution where fundamental rights and judicial review form part of the foundational principles of Indian Constitutional jurisprudence.
Therefore, any actions taken or warrants, whether oral or written, issued by a Legislative House to penalize anyone for its contempt are not conclusive and non-justiceable in India. However, judicial scrutiny can be employed only in rare cases where mala fides, arbitrariness, or unconstitutionality in actions of a Legislative House is apparent. The Courts are indeed reluctant to interfere in such matters, except in rare circumstances.
Furthermore, the Supreme Court, in order to clear and substantiate the rationale behind its stance on this point, convincingly argued that when a law that is introduced in a House of Parliament as a bill passed by both Houses after due deliberations of the members thereof and thereafter transformed to a full-fledged law after receiving the assent of the President, can become subject to judicial review, why and how an action taken by an individual member, Committee, Speaker, or Chairman of only one House or by a motion of that House itself can be logically allowed to enjoy absolute immunity from judicial review? The same argument also applies in the case of State Legislatures as well. This is how; the Court justified the infusing of the doctrine of judicial review, however, to a limited extent, into the exercise of contempt powers by the Legislative Houses in India.
Critical Evaluation of the Parliamentary Privileges and Conclusion
From the above discussion, there remains no shadow of doubt to accept that Parliamentary Privileges are indefeasible facets of a democratic setup. These are indispensable to enable the Legislative bodies to act without fear, favor, or external interferences and with absolute autonomy in the managing of the internal affairs thereof, for the hallmark of a healthy democracy is the efficient functioning of the Legislature, together with the other two democratic institutions. However, from another aspect, except for the privileges expressly conferred by the Constitution, in the absence of any law made by the Parliament or concerned Legislatures, it lacks certainties to a large extent. More specifically, serious consequences are always likely to ensue from the uncertainties or vagueness in the exercise of the penal powers vested in the Legislative Houses to punish anyone for committing contempt or breach of privilege thereof. This is because such uncertainties somehow open the avenues of arbitrariness which is entirely incompatible with the notions of democracy and Constitutionalism because non-arbitrariness is the sine-qua-non of the Rule of Law. There has been a long demand in favor of the codification of the Legislative Privileges to make the privileges more specific, certain, and free from all sorts of ambiguities. However, it is also true that there are a few snags in codifying the privileges. It is so because till a few privileges have been expressly conferred by the Constitution, no points of dispute shall be there in respect of those privileges. But, if the privileges are codified, the question may arise as to whether those privileges are to be subject to judicial review or not, for falling within the definition of law as defined under Article 13(3), and the same will bring the Courts into the pictures to get the Constitutional validity of the provisions thereof adjudged which may be inconsistent with the ideas of internal autonomies of the Legislative Houses. Similarly, with regards to the exercise of contempt powers, Article 19(2) expressly contains Contempt of Court but does not contain Contempt of Legislature as limitations to the fundamental right to freedom of speech and expression protected under Article 19(1)(a). If the privileges are codified, then also Article 19(2) has to be amended, and Contempt of Legislature has to be inserted, but such an Amendment will also bring the Courts into the pictures. Confusions may also arise as to whether such privileges can be controlled by fundamental rights or not.
From another aspect, the idea of separation of powers has been founded upon the division of powers between the three wings- Legislature, Executive, and Judiciary. Every wing has to perform its functions assigned to it, staying within their respective domains explicitly demarcated by the Constitutional framework, without encroaching upon the domains of one another. Likewise, as per the Constitutional framework and theories of separation of powers, Judiciary is entrusted with the functions of interpreting the laws and administration of justice by exercising penal powers conferred by the laws, but it does not have the authority to legislate. On the other hand, Legislature is entrusted with the legislative functions only. Therefore, conferring penal powers as a matter of privilege to a Legislative House is contrary to the separation of power. Moreover, a House becomes the judge of its own cause while exercising such penal powers vested in them to punish anyone for its contempt. Further, a House is essentially a political creature, and whatsoever may be the justification behind conferring the contempt powers to it, it is quite difficult to believe that those of powers shall be exercised in non-partisan and non-political manners. Again, Judiciary being an independent and non-political creature, can function with much independence and impartiality. Exercising the contempt powers with mala fides or political motives involves disastrous consequences because of the non-availability of the ordinary legal and procedural safeguards, absence of any extra-institutional checks of those contempt powers of a House, and very limited scope of judicial scrutiny and a flicker of hope for judicial remedy. If the powers are not exercised with proper caution and in extreme cases, the Legislature may become an autocrat, which will destroy the notions of democracy.
Keeping the above points and the complications in the complete codification of the Parliamentary Privileges in view, it can be concluded that definitization of the Parliamentary Privileges to some extent instead of keeping it a fully nebulous phenomenon is the only middle way to get rid of the major uncertainties and vagueness and also to dispel the chances of the Legislative autocracy and tyranny in the country. Such definitization of the Privileges may be endeavored by various means such as—
- demarcating certain delimitation lines in respect of the exercise of the contempt powers by the Legislative Houses so as to restrict the arbitrary or capricious exercise of those powers;
- formulating just, fair and reasonable procedures and infusing the ideals of fair trial, natural justice, equality before the law, and non-arbitrariness into those procedures to be adopted in every case of the exercise of penal powers by the Houses for breach of privileges; and
- explicitly recognizing and causing the publication of such recognition of some privileges which are not expressly conferred by the Constitution or by any other law for the time being in force but are being claimed by the Houses for a considerable period of time.
Moreover, such definitization of the privileges will also not compel the Courts to interfere in the functioning of the Legislative Houses concerning any matter connected to the privileges, and this will naturally prevent the further occurrence of the Legislature- Judiciary face-offs and deadlocks that may be ensued between the democratic institutions, as witnessed in the Keshav Singh’s case, ensuring the harmonious functionings of all the organs with the strict allegiance to the Constitution. In this way, the Parliamentary Privileges may be expected to find the right directions to sebserve the democratic and Constitutional mandates.
What constitutes privilege, Erskine May, UK Parliament, https://erskinemay.parliament.uk/section/4570/what-constitutes-privilege/
MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed
Dr. Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee, AIR 1961 SC 613 (India)
MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed
Gunupati Keshavaram Reddy vs. Nafisul Hasan & State of UP, AIR 1954 SC 636 (India)
MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed
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