17 Feb

Parliamentary Privileges

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Content

• Introduction
• Two Types of Parliamentary Privileges
• Need of Parliamentary Privileges
• What constitutes a breach of privilege?
• Criticism of Parliamentary Privileges
• Parliamentary Privilege vs Fundamental Rights
• Way Forward to prevent misuse

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Introduction

• Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution, MPs in their individual capacity and various committees. These privileges ensure effective working of the Parliament and ensure authority, dignity and honour of the Parliament and its members.
• The Indian Constitution specifies the powers and privileges of Parliament in Article 105 and those of State legislatures in Article 194. This includes
  i. Freedom of Speech in Parliament subject to other provisions of the Constitution and
  standing order of the house (Article 105(1), 194(1)).
  ii. Immunity for all speeches and votes in the parliament or any committee from judicial scrutiny (Article 105(2), 194(2))
  • Immunity for persons publishing any report, paper, votes or proceeding by Parliament or under the authority of parliament.

iii. Powers and privileges and immunities of each house of the Parliament, and of the members and the committee of each house, shall be such as may from time to time be defined by Parliament by law. (105(3), 194(3)

• • Until then it would have the same privilege as the British Parliament had in 1950.
    • This was amended by the 44th Constitutional Amendment Act. It provided that other privileges of each house of Parliament, its committees and its members are to be those which they had on the date of commencement (i.e. 20th June 1979), until defined by Parliament.
  • Till now, parliament or state legislature have not passed any law to codify their
    privileges.

iv. The above immunities are also applicable to persons who by virtue of this constitution has the right to speak in, or 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.
(104(4), 194(4))

Note

• Article 194 is an exact reproduction of Article 105 and it deals with the state legislatures and their members and committees.

Two Types of Parliamentary Privileges

1. Collective Privilege:

• The privileges, immunities enjoyed by each house of the parliament collectively
• Right to publish its reports, debates and proceedings
• Excluding strangers from its proceedings
• Holding secret sittings
• To Punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion, in case of members)
• The Courts are prohibited to enquire into proceedings of a House or its committees

2. Individual Privilege:

• In Civil cases, no arrest during the session of the house of 40 days before the beginning of the session and 40 days after end of the session
• Freedom of Speech in Parliament. No proceeding can be initiated against them in any court for anything said or any vote given in Parliament or its committees.
  • This freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Parliament.
• They are exempted from jury service.

Need of Parliamentary Privileges

• Enable each house of the legislature to discharge function properly and free of any pressure.
• The members of highest deliberative body in the country and in each state should have freedom of speech to ensure all views (no matter how small, fringe or different) are being discussed.
• Immunity from Judicial proceedings ensure non-interference by Judiciary in the parliamentary proceedings and separation of powers.
  • It further enhances the quality of deliberation in the house without worrying about Judicial interference.
• These privileges ensure that undue influence, pressure or coercion is not brought on the legislature in the course of its functioning.

What constitutes a breach of privilege?

• A breach of privilege is a violation of any of the privilege of MPs/Parliament.
  • Among other things, any action ‘casting reflections’ on MPs, parliament or its committees; could be considered breach of privilege.
• No clearly laid out rules on what constitutes breach of privilege and what punishment it entails.
  • This has led to a very high weightage being given to view of the members of the house.

Sources of the Parliamentary Privilege

• Not codified yet
• They are based on following sources:
  1. Constitutional provisions
  2. Various laws made by Parliament
  3. Rules of Both the Houses
  4. Parliamentary Conventions
  5. Judicial Interpretations

Cases of breach of privileges?

• Several such cases.
  • In 1967, two people were held to be in contempt of Rajya Sabha, for having thrown leaflets from the visitors’ gallery.
  • In 1983, one person was held in breach for shouting slogans and throwing chappals from the visitor’s gallery.
    • Sentenced to simple imprisonment
• Similarly there are many cases on breach of privilege of state assemblies.
  • In June 2017, Karnataka Assembly speaker ordered the imprisonment of two journalists for a year based on recommendations in two separate reports of its privilege committee.

Criticism of Parliamentary Privileges:

• Against Freedom of Speech
  • Because of no codification it sometimes can be misused
  • For countering genuine criticism by individuals or media
• Unlimited Powers: No codification of provisions through a law has also led to parliamentarians getting unfettered powers to deal with cases.
• Conflict of Interest: It allows politicians to act as judge in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantee.
• Used for non-essential reasons: Further, breach of privilege is invoked for the ostensible reason of protecting the image of the house on the whole or its individual members.
  • It should only be used when the functioning of the house is being obstructed.
• Right to life and personal liberty violated
  • Legislatures power to punish someone with imprisonment is questionable.
• Violation of the principle of separation of power between legislature, executive and judiciary

Parliamentary Privilege vs Fundamental Rights

• In MSM Sharma case 1959, the Constitutional bench of the Supreme Court held that in case of conflict between fundamental right under Article 19(1)(a) and a privilege under Article 194(3) the latter would prevail.
• In Raja Ram Pal v Hon’ble Speaker, Lok Sabha and Ors. (2007), a constitutional bench of the Supreme court held that FR under article 20 and 21 could prevail over privileges under Article 105 and 194.

Supreme Court’s jurisdiction

• Remain somewhat unclear
• No rationale for Supreme court holding some FR superior and some subservient to parliamentary privileges.
• Aug 2022 – Chairman of Rajya Sabha – Venkaiah Naidu said that MPs don’t enjoy any immunity from being arrested in a criminal case during session or otherwise.

Way Forward to prevent misuse

• Codification of privileges is the need of the hour -> Clearly define what privileges are:
  • Framers of constitution also envisaged codification of privileges through law.
• Breach of privilege should be applied when there is a real obstruction of functioning of a house, and not in a way that sets legislator above ordinary comment and criticism.
• Restrict the use of privilege to the proceeding of the legislature.
  • Members who are falsely accused of impropriety can use the defamation route through
    courts.
• Another issue that has to be resolved is that whether the House should have the power to sentence a person to a jail term.
  • While the British parliament continues to have such powers, it has not used it since 1880.
  • Considering the Constitutional Bench’s judgement in Raja Ram Pal case in 2007 where it said that privileges could be subordinate to Article 20 and 21, the legislative house shouldn’t have the right to punish with imprisonment as it affects the Right to Life and Personal Liberty under Article 21.
• Courts should also revisit their earlier judgment and find the right balance between Fundamental Rights of citizens and privilege of the legislature.
  • Considering that the privileges is subject to other provision of constitution, interpreting FR to be subordinate to parliamentary privileges can be reconsidered.