PREROGATIVE OR AN IMPATITY TOWARDS SOCIETY

Author: Yash Choudhary, pursuing B.B.A.,LL.B.(Hons.) from Jaipur National University

Parliament is known as the temple of democracy and its procedures are the rites by which the will of people is translated into practice.

The foremost forum of for taking matters related to the country is the Parliament. This responsibility comes with a duty of speaking their minds and so should be given the scope and leeway to discuss and issue and raise any topic. The right given to them is known as the parliamentary privilege, is not an absolute right, however is governed by the need for the members to conform to certain of the basic principles that can be expected of a high-ranking officer.

The term privilege, means certain rights and the immunities that are enjoyed by each house of the parliament. This says that these privileges are important to get the parliament to work effectively and efficiently. As said by the Lok Sabha Secretariat, “the object of the parliamentary privilege is to safeguard freedom, the authority and the dignity of the parliament. They are enjoyed by individual members, because the house cannot perform its function without the unimpeded use of the services of its members. They are not exempted from the obligations that are applied to other citizens, nor it places an MP on a different footing than the other citizen in the matters of applicability of law, until there is a good and sufficient reason in the interest of the country or the parliament.

Origin of this privilege

The origin in India can be traced back to the 1883 Charter Act which a new type of legislative machinery came into existence. This Charter laid down the foundation of the very now structure of the legislative functioning in India.

Following, the Charter there was another Act which provided that there should be freedom of speech in the legislature for its proper functioning, the Government of India Act 1909. In the current time, there are some privileges which are specified in the constitution and there are certain statutes and rules of the procedure of the houses while others are based on the precedents of the house of commons.

The main articles dealing with the privileges in the Indian Constitution are 105 and 122, along with the corresponding articles for the states which includes, 194 and 212. Article 105(1) of the constitution provides that the subject to the provisions of the constitutions and the rules and standing orders regulating the procedure of the parliament, there will be freedom of speech in the parliament. [i]

Privileges given

There are two categories of the parliamentary privilege in India, the specified and enumerated, and the recognized and unremunerated.

In the first category the privilege given to a member is the right to speak freely in the house. It provides immunity to the members against any legal proceedings in respect of anything said or voted in the parliament thereof. It also covers the immunity of exemption from legal proceedings in regard of any publication by or under the authority of either house of the parliament. The next privilege which is also an important one is the, freedom from arrest of members in civil matters when the sessions are in continuance and 40 days before and after its commencement and conclusion respectively. However, this arrest is not exempted from any preventive arrest or detention under statutory authority in the criminal cases.

In the second category, there falls those privileges which are enjoyed by house of commons of the parliament of the United Kingdom, and its members.

• Collective privileges-those privileges which are enjoyed by the Indian Parliament as a whole.

• Individual privilege- those privileges which are secured to the members of the parliament on an individual level.

Collective privilege

• The reports, debates and the proceedings can be either published or detained from publishing by the parliament. However, the 44th amendment allowed media to publish the true reports of the parliamentary proceedings except for the same related to the house’s secret sitting.

• The Indian parliament also have the right to exclude strangers from sitting or attending its proceedings.

• The secret sittings in the houses are also a part of the parliamentary privilege.

• The houses of the parliament can make rules for-

1. The regulation of their procedure.

2. Adjudication of their work.

3. Conduct of their business.

• The parliament has the right to suspend or expel members in case of breach of privilege.

• The parliament has further powers to punish the outsiders or members for any breach of privilege done by them using, Reprimand, Admonition, Imprisonment.

• The parliament has the right to receive immediate information regarding arrest, detention, conviction, imprisonment and release of its members.

• Any enquires can be initiated by the Indian parliament and the right to call upon the witness as well. Also, the proceedings of the houses and the committees cannot be inquired by the court.

• No person can be arrested and no legal proceeding whether civil or criminal can be initiated within the premises of the house without prior permission form the pressing officer.

Individual privilege

• No arrest of the member of the parliament can take place during the session of the house. Also, they cannot be arrested 40 days before and after the session’s beginning and the end.

• The members are given the right to freedom of speech and are not liable for any legal proceeding for the speech given in the parliament or in its committees. The speech can however be regulated using the rules given for guidance in the house during its sessions.

• They are exempted from jury service. They have the right to refuse in giving evidence and appear as a witness in a case before the court when the parliament is in session.

Sources of privilege

Every provision, rights and duties have their sources of origin. The sources of this privilege can be traced to –

1. Constitutional provisions

2. Laws made by the parliament

3. Rules of both the houses

4. Parliamentary conventions

5. Judicial interpretations

General facts about the privilege given

• The provisions related to the parliamentary privilege can be amended in the parliament by using a vote of majority in the parliament itself.

• There is one person who is not entitled to the parliamentary privilege and that is, President.

• Until and unless an oath is not taken before the President the privileges and immunities granted to its members are not applicable.

• The Lok Sabha Speaker is the guardian of the Lok Sabha member’s privilege and the committees of this house of the parliament.

• There is a ‘privilege motion’ which is used to censure a minister for any breach of the parliamentary privilege. Motions such as Adjournment motion and token cut motion cannot be used to raise any questions regarding the privilege.

• There is a judicial power in the hands of the parliament to punish the members of the house or any outsiders if there is a breach of any privilege.

• A committee called the “committee of privileges” which acts as a semi- judicial body, is responsible for the examining of the breaches. There are a total of 15 and 10 members from Lok Sabha and Rajya Sabha respectively in the committee.

Relevant provisions concerning Privilege in the Indian Constitution

Article 105 and 194 of the Indian Constitution deals with power, privileges and immunities of the parliament and its members and of their state legislaturealong with their members respectively.

Article 105 in The Constitution of India 1949

105. Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof

(1) Subject to the provisions of this constitution and 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.

Article 194 in The Constitution of India 1949

194. Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings

(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution forty fourth Amendment Act, 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature

In the case of-

Raja Ram Pal vs. Speaker, Lok Sabha,[ii]

The court in this case considered and viewed the ambit and scope of the exercise of Parliamentary Privilege. Here the court took hold of the concept that when the parliament enacted these privileges, they took them as they were the exclusive judges of their privilege, claiming themselves to be the “absolute arbitrators” and took the stand that their decisions were of higher superiority and cannot be overlooked by any court or authority. The courts were however given the power to interpret the law of the parliament and apply them. A judge after using the test of “necessity” for privilege as “jurisdictional test” stated that the test of necessity is not applied as a standard for judging the contents of the privileges claimed but rather for the purpose of determining the necessary sphere for matters of exclusive or absolute “parliamentary” or “legislative” jurisdiction. It was further stated that it was not that the courts had no role to play in the debate which arises where individual’s rights are alleged to conflict with parliamentary privilege. The matter was further related to Charter used in the Canadian and England court of law and concluded that there may be granting of powers and privileges to the parliament but once they undermine an individual’s rights the court may seek to intervene.

Sir Erskine May[iii] states:

“Parliamentary privileges, 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 exceeds those possessed but other bodies or individuals. Thus privilege, though part of 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 exists because the house cannot perform its functions without unimpeded use of the service of its members.”

Amrinder Singh vs. Spl. Committee, Punjab Vidhansabha[iv]

In this case court held that the Parliamentary privilege and immunity with respect to exercise of privilege is founded upon necessity. The content and extent of such privilege have evolved with reference to their necessity. They are supposed to be exercised in order to ensure that legislative functions can be exercised effectively, without any undue restrictions. The distinctive mark of a privilege is its ancillary character. Its exercise is open to judicial scrutiny.

The supreme court in M.P.V. Sundaramier and Co. vs. State of Andhra Pradesh[v]cautioned that, “The threads of our constitution were no doubt taken from other federal constitution but when they were woven into the fabric of our constitution their reach and their complexion underwent changes. Therefore, valuable as the American decisions are as showing how the question is dealt with in sister Federal Constitution great care should be taken in applying them in the interpretation of our constitution.”

Thus, it can be concluded that in order to determine privileges, the houses cannot turn a blind eye to existing laws in the country. The privileges are scrutinized to see whether they suit the Indian Democracy and does not offend the Republic Characteristic of the nation.

[i]https://www.google.com/amp/s/www.news18.com/amp/news/explainers/explained-what-is-parliamentary-privilege-and-what-amounts-to-its-breach-4539620.html [ii] 10 January, 2007 [iii] Sir Thomas Erskine May : Parliamentary Practise, 16th Edition, Chapter III, p.42 [iv] 26 April, 2010 [v] AIR 1958 SC 468