Indian Parliamentary Privileges

Indian Parliamentary Privileges

By Venudhar Routiya

LL.M.(Constitutional & Administrative Law) & UGC-NET

Democracy is a form of government in which all citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal (and more or less direct) participation in the proposal, development and passage of legislation into law. It can also encompass social, economic and cultural conditions that enable the free and equal practice of political                         self-determination. The term parliamentary privileges is used in Constitutional writings to denote both these types of rights and immunities. Sir Thomas Erskine May has defined the expression ?Parliamentary privileges? as follows: The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the High Court of Parliament, and by members of each house of parliament individually, without which they cannot discharge their functions, and which exceed those possessed by other bodies or individuals.

Some powers and privileges of each House of Parliament to which they are able to work independently and effectively and prestige, authority and its members could protected. House uninterrupted services to its members without the use of your work can not play sothat members are individually parliamentary provilege. In addition, the right to uninterrupted exemptions relating to parliamentary duties to perform and the rights of voters are also to protect. Evaluate the true nature and extent of parliamentary privilege as it makes clear the need and does such a notion is rejected.

Article 105 of Constitution of India : 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 proceeding 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 the members and the committee 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 (44th Amendment) Act, 1978].

4.         The provision 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 the members of Parliament.

Parliamentary privileges-this article defines parliamentary privileges of both Houses of Parliament and of their members and committees. Article 194, which is an exact reproduction of Article 105, deals with the State Legislatures and their members and committees. To enable Parliament to discharge functions properly the Constitution confers on each member of the Houses certain rights and immunities and also certain rights and immunities and powers on each house collectively. Parliamentary privilege is an essential incident to the high and multifarious functions which the legislature is called upon to perform. According to May, the distinctive mark of a privilege is its ancillary character a necessary means to fulfillment of functions. Individual members enjoy privileges because the House cannot perform its function without unimpeded use of the services of its members and by each House for the protection of its members and the vindication of its own authority and dignity.

In defining Parliamentary privilege this article adopts certain method. Two privileges, namely, freedom of speech and freedom of publication of proceedings, are specifically mentioned in clauses (1) and (2). With respect to other privileges of each House, clause (3) before its amendment in 1978 laid down that the powers, privileges and immunities shall be those of the House of Commons of the United Kingdom at the commencement of the Constitution until they are defined by an Act of Parliament. Though since 1978 position has changed in so far as the privileges of parliament, its members and committees have to be determined on the basis of what they were immediately before the commencement of 1978 amendment i.e., before 20th June 1979.

Many people argue that the Indian Parliament in his own case prosecutor and judge both become, Judicial authority should be handed over to courts. I argue that the country's highest institution of the Parliament, If only the control of the Constitution have been contempt or not the decision on how the left can work to another institution. Also logic behind this is that if our political system to work properly so will uphold parliamentary supremacy. MPs of the institution and his duty to the people of their responsibility to protect the rights of people living principles of parliamentary supremacy to be maintained.

India's parliamentary system are based on very few UK’s parliamentary systems. That the Constitution of India, members of Parliament and Legislatures’ privileges are provided  like the British Parliaments. While there back in the UK Parliament to give such privileges tremendous confrontation between the king and the people's representatives had, which was not possible MPs to work uninterrupted, yet here were given the privilege of the people's representatives.

Political  representatives are not a king of Parliament, so just because the shield of privilege to discharge their duties if a barrier is generated to be penalized. In August 1950, the All India Conference of Presiding Officers’ were told “the purpose of the parliamentary privileges of Parliament freedom, authority and dignity is to protect.Members of Parliament and State Legislatures have the task of privileges are necessary to discharge them properly so they can perform their duties without stopping for parole. When a person or an authority members individually or collectively, the House no privileges, rights or immunities is disregarded or is Kutarahat on the breach of privilege of the crime are described”.

If a member of Parliament or the legislature of his actions violate the dignity of Parliament or the legislature or violates the privileges of the House of Parliament or legislature may expel the member from the House.

There have been several instances of expulsion of Members of Parliament in India as well.

1. On 8^th June 1951 a Committee was appointed by the House of the People (Lok Sabha) to investigate the conduct and activities of a Member, Shri H.G. Mudgal. The Committee held that the conduct of the Member in accepting monetary considerations was derogatory to the dignity of the House and inconsistent with the standards which Parliament was entitled to expect from its Members. In pursuance of the Report of the Committee, on a Motion adopted by the House, Shri Mudgal was expelled from the Lok Sabha.

2. In September 1976, Shri Subramaniam Swamy a member was expelled from the Council of States (Rajya Sabha) upon the findings of an Ad Hoc Committee that he had indulged in activities unbecoming of a member and that his membership of the House should be terminated.

3.    On December 19, 1978, consequent on a Motion being adopted by the 6^th Lok Sabha, Smt. Indira Gandhi (a former Prime Minister) was committed to jail till the prorogation of the House and also expelled from the membership of the House for causing serious obstruction, intimidation, harassment and institution of false cases by her Government when she was the Prime Minister against certain officials who were collecting information to answer a certain question in the House during the previous Lok Sabha. However, on May 7, 1981, the 7^th Lok Sabha rescinded the Motion of expulsion of Smt. Gandhi by a Resolution.

4. In more recent times, there have been two cases of expulsion of Members from the membership of the Council of States (Rajya Sabha). On 23^rd December, 2005, a member was expelled from the House, in the wake of telecasting of an undercover operation showing the Member accepting money for asking questions in the House, on the recommendation of the Committee on Ethics of the House which was subsequently accepted by the House on a motion. Similarly, in the wake of telecasting of another sting operation on the recommendation of the Committee on Ethics which was subsequently agreed to by the House by adopting a motion, another Member was expelled from the membership of the House on 21^st March, 2006 for his act of demanding commission for execution of works/projects under the Members of Parliament Local Area Development Scheme (MPLADS), which the Committee felt, had brought the House into disrepute.

5. There have also been cases of Members expelled by the Legislative Assemblies of the States in India.

6. A question arises as to what extent the expulsion of its members by Parliament or the State Legislatures is justiciable and the expelled members can seek relief from the Courts in India. It is settled law that the Courts have the power to interpret the existence and scope of a power, privilege or immunity of Parliament under Article 105 (3) or the State Legislatures under Article 194 (3). However, articles 122 and 212 of the Constitution state that the validity of any proceedings in Parliament and State Legislatures shall not be called in question on the ground of any alleged irregularity of procedure. The question whether the judiciary can interfere in matters of Parliamentary privileges or not has been examined by the Indian Judiciary at different points of time in different situations. On each occasion, the judiciary has arrived at the conclusion that it cannot interfere in matters of privileges of Parliament and recognized that a House of Parliament or a State Legislature is the sole authority to judge as to whether or not there has been a breach of privilege in a particular case. It has also been held that the power of the House to commit for contempt is identical with that of the House of Commons. The Supreme Court of India has, however, uptil now not pronounced a judgement whether the privileges of Parliament or State Legislatures include the power to expel their Members albeit there have been conflicting judgements of the High Courts in different States over the issue. As a matter of fact, the Supreme Court of India has never had an occasion to consider whether the power vested in the House of Commons to expel its members, vests in the Legislatures or Parliament in India. The Supreme Court, however, while dealing with the power of a State Legislature to punish citizens who are not its members for contempt alleged to have been committed by them outside the four walls of the Legislature, had observed in Special Reference No.1 of 1964, as reported in AIR 1965 SC 745, that not all powers and privileges of the House of Commons vest in the Indian Parliament and Legislatures. As an example, the Court observed that the power of the House of Commons to regulate its Constitution cannot be claimed by the Indian Legislatures. While not explicitly setting out in the judgement, the reasoning appeared to be that unlike the case in England, India had a written Constitution and the constitution of Parliament and the State Legislatures is regulated by Chapter-III of Part VI and Part XV of the Constitution and the Representation of the People Acts, 1950 and 1951. The Court further observed that the power, privileges and immunities enjoyed by British Parliament in its historical capacity as a Superior Court of Record cannot be claimed by Indian Legislatures since they are not superior courts of record. The Punjab and Haryana High Court had, however, relying on the said observations of the Supreme Court held in a case that since the Indian Legislatures do not have the power to regulate their own Constitution and are not superior courts of record, they do not have the power to expel members. It may be pertinent to note in this context that the observations of the Supreme Court on which the Punjab and Haryana High Court relied were in a case on different facts which did not relate to any action by a Legislature against its member but against a citizen ignoring in the process the observation of the Supreme Court that they were “not dealing with any matter relating to the internal management of the House in the present proceeding”. In sharp contrast to this judgement of the Punjab and Haryana High Court, the Madhya Pradesh High Court in another case had upheld the view that the Indian Legislatures have the power to expel their members. It was held by the Court that the power of the House of Commons to expel is independent of the power to regulate its own constitution.

7. In a nutshell, the Parliament in India and the State Legislatures alike have, like the House of Commons in England, viewed gross acts of misdemeanor/misconduct on the part of their Members very seriously and exercised their inherent penal jurisdiction by expelling them from the membership of the Houses to which they belong. Two Members of the Council of States (Rajya Sabha), who were recently expelled from the membership of the House as also those members of the House of People (Lok Sabha) who were expelled from Lok Sabha, have filed writ petitions in the Supreme Court/Delhi High Court challenging their expulsion and raising questions over the competence of the House to expel them. May be that the Supreme Court, which is hearing all the writ petitions together, this time adjudicates on the question as to whether the power vested in the House of Commons to expel its Members vests in the State Legislatures and Parliament in India.

In Pandit M.S.M Sharma v. Shri Krishna Sinha , proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under A. 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged. The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgment, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.

Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses.

Law Courts and Privileges Article 105, so also Article 194 subjects the powers, privileges and immunities of each House as well as all its members and all its committees not only to the laws made by the appropriate legislature but also to all other provisions of the Constitution. Both these articles far from dealing with the legislative powers of the Houses of Parliament or of State Legislature respectively are confined in scope to such powers of each House as it may exercise separately functioning as a House .

A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice can, but it can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities in order to seek removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings. For example, the jurisdiction to try a criminal offence such as murder, committed even within a House vests in ordinary courts and not in a of Parliament or in a State Legislature. Also, a House of Parliament or State Legislature cannot in exercise of any supposed powers under Articles 105 and 194 decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329.

Parliamentary Privileges and Fundamental Rights In Pandit M.S.M. Sharma's case it was also contended by the petitioner that the privileges of the House under A.194 (3) are subject to the provision of Part III of the Constitution. In supposrt of his contention the petitioner relied n the Supreme Court's decision in Gunupati Keshavram Reddi v. Nafisul Hasan. In this latter case Homi Mistry was arrested at his B'bay residence under a warrant issued by the Speaker of U.P. Assembly for contempt of the House and was flown to Lucknow & kept in a hotel in Speaker's custody. On his applying for a writ of habeas corpus, the Supreme Court directed his release as he had not been produced before a magistrate within 24 hours of his arrest as provided in Article 22 (2). This decision therefore indicated that Article 194 (or Article 105) was subject to the Articles of Part III of the Constitution.

In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any violation of it. In Powers, Privileges and Immunities of the State Legislature, Re , the proposition laid down in Sharma's case was explained not to mean that in all cases the privileges shall override the fundamental rights.

The rules of each House provide for a committee of privileges. The matter of breach of privilege or contempt is referred to the committee of privileges. The committee has power to summon members or strangers before it. Refusal to appear or to answer or to knowingly to give false answer is itself a contempt. The committee's recommendations are reported to the House which discusses them and gives its own decision.

Conclusion:
There is a clear demarcation as to what all rights and privileges are absolute and what are not. For example, in India Legislative Assemblies and Parliament never discharge any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of record in any sense. No immunity from scrutiny
by courts of general warrants issued by House in India can therefore be claimed.

Both the Parliament and State Legislatures have a duty to look carefully before making any law, so that it doesn't harm other rights. It is also a duty of the members to properly use these privileges and not misuse them for alternate purposes that is not in the favour of general interest of nation and public at large. Thus what we must keep in mind is the fact that ?power corrupts and absolute power corrupts absolutely. For this not to happen under the privileges granted, the public and the other governing body should always be on vigil

Reference :

1.       Sansdiya Patrika, Lok Sabha

2.       Parliamentary debet, Lok Sabha

3.       50 years of Parliaments, Subhash Kashyap, Ex-Secretary General, Lok Sabha

4.       Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299

5.       Powers, Privileges and Immunities of the State Legislature, Re, AIR 1965 SC 745: (1965) 1 SCR 413.

6.       Sir Thomas Erskine May: Parliamentary Practice, 16th Edn., Chapter III, p.42.

7.       Jatish Chandra Ghosh v. Harisadhan Mukharjee AIR 1956 Cal 433.

8.       In case of Parliament, Articles 118 and 120.

9.       Rule 248: there are similar provisions in the rules of Rajya Sabha.

10.    P.V.Narsimha Rao v. State (1998) 4 SCC 626

11.    In case of Parliament, Articles 118 and 120.

12.    Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632

13.    Shri Agnihotri, Secretary General, Rajya Sabha