Open Access Research Article
A CRITICAL ANALYSIS ON PARLIAMENTARY PRIVILEGES IN INDIA AND CANADA (By-Dimple Nitin Rathod)
Published Paper
Article Details
A CRITICAL ANALYSIS ON PARLIAMENTARY PRIVILEGES IN
INDIA AND CANADA
Authored By-Dimple Nitin Rathod
P.E.S
Modern Law
College
Department
Of L.L.M
Ø Introduction
Privilege is that which sets honorary members apart
from other citizens giving them rights which the public do not possess …. In my
view, parliamentary privilege does not go much beyond the right of free speech
in the House of Commons and the right of a member to discharge his duties in
the House as a member of the House of Commons.
- Speaker Lucien Lamoureux
The term “parliamentary privilege” is used in
constitutional writings to denote both rights as well as immunities. The
pioneer analyst in law of parliamentary privileges Sir Thomas Erskine May has
defined the expression „parliamentary privileges? as follows:
“Parliamentary privilege is the sum of 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”.
‘Parliamentary Privileges’ is an all-embracing and
comprehensive term which includes certain powers, privileges and immunities
enjoyed by a legislature and its members. These privileges enable the
legislature to discharge its functions effectively, fearlessly and without any
outside interference. The British Parliament, which is regarded as the cradle
of Parliamentary institutions all over the world, has certain powers and rights
such as the ‘power to punish for breach of privilege or contempt’, ‘right to
regulate its own composition’ and ‘right to prohibit the publication of its
proceedings’. Individual members of each House of Parliament also have certain
rights and immunities such as ‘freedom of speech and debate in the house’ and
‘Freedom from arrest in civil cases’ etc.
These privileges and immunities by protecting its
authority and self-esteem empower the legislature to execute its affairs
effectually, valiantly and independently without any external interventions.
“Power to punish for breach of privilege or contempt”, “right to regulate its
own composition”, “right to prohibit the publication of its proceedings”,
“freedom of speech and debate in the House” and “freedom from arrest in civil cases”
etc. are some important privileges or immunities generally granted to a
parliament in a parliamentary form of democratic polity. [1]As
the concept of parliamentary privilege in India is an “importation from
England” it has the same characteristic nature “not being codified” but “being
in crystallized” form by modes of “resolutions, standing orders, conventions
and practices of the Houses, and they are part of the Law and Custom of
Parliament.
The practices and precedents of the House of Commons
of Canada regarding parliamentary privilege stretch far back into colonial
times. At an early stage, the young assemblies of the colonies, modelling
themselves on Westminster, claimed the privileges of the British House, though
without statutory authority. At Confederation, the privileges of the British
House were transferred in the Constitution Act, 1867 to the Canadian
Parliament, and for many years the Canadian House continued to look to the
experience of the British House for guidance in matters of parliamentary privilege.
Ø Parliamentary Privilege- Indian Perspective
The law-making bodies and their Members, all over the
world, enjoy certain constitutional powers, privileges and immunities
collectively known as the “Parliamentary Privileges or Legislative Privileges”.
Parliamentary privilege encompasses certain special rights and immunities
deemed necessary to allow legislatures to protect themselves and their Members
from undue interference so that they can effectively carry out their functions
of inquiring, debating and legislating. Parliament is not only a Legislative
Organ but also, in the words of Lord Denman, is a grand inquest of nation.
Parliament functions through free discussions, open debate, exchange of
arguments and criticism.
Privileges are,
therefore, necessary to enable the Members to discharge their duties and
responsibilities effectively and efficiently without any interruption,
especially the opposition bench, who in a parliamentary polity has to build
itself as an alternative government. The doctrine emerged over several hundred
years of English history in response to genuine threats to the House of Commons
from the
Crown and the House of Lords, and continues to evolve
both, in Britain and in its former colonies.
In parliamentary language, the term ‘privilege’
applies to certain rights and immunities enjoyed by each House of Parliament
collectively and by Members of each House individually. The object of
parliamentary privilege, as derived from its history, is to safeguard the
freedom, the authority and dignity of the Parliament. It is nothing but the sum
of the peculiar rights enjoyed by each House collectively and by Members of
each House individually without which they could not discharge their functions
and which apparently exceed those possessed by other[2]
bodies or individuals. This makes it an exemption from
the ordinary law although being a part of the Law of the Land. It may, however,
be pointed out that the Constitution does not give any concrete definition of the
term ‘privilege’. It was thought by the framers of the Constitution that in
order to preserve the dignity and independence of the two Houses of Parliament,
the term ‘privilege’ must remain as undefined. It is, therefore, submitted that
it is not possible to give an exhaustive and precise definition of the term
‘privilege’.
Privileges are now necessary to help the Members in
effectively and fearlessly discharging of their duties and responsibilities and
to keep the sanctity and dignity of the Parliament. The term privilege when
used for Parliament as an institution, is nothing but the power of Parliament
through which the sanctity and dignity of the Parliament can be maintained and
when gets associated with the Members of Parliament, are basically the immunities
of the Members, so that they can work effectively and fearlessly.
Article 105
and Article 194 of the Constitution of India deal with the privileges of the
Parliament and the State Legislatures respectively. The framers of the
Constitution, in order to avoid any confusion and conflict in future, made
separate provisions for the Parliament and the State Legislature. Clause (1)
and (2) of both these Articles guarantees freedom of speech in Parliament and
immunity from civil and criminal proceedings to a Member in respect of anything
said or done in Parliament and also immunity to any person in respect of the
publication by or under the authority of either House of Parliament in respect
of any report, vote, papers or proceedings. The framers of the Constitution,
for other privileges of Parliament and State Legislature, left them free to
define their privileges by law. However, until such privileges were codified by
the institution themselves, the framers of the Constitution adopted a
transitory mechanism by the virtue of which the privileges of the British
Parliament were extended to the Indian Parliament and the State Legislature.
Ø Parliamentary
Privileges- Canadian
Perspective
Privilege is that which sets hon. members apart from
other citizens giving them rights which the public do not possess… In my view,
parliamentary privilege does not go much beyond the right of free speech in the
House of Commons and the right of a member to discharge his duties in the House
as a member of the House of Commons. [3]
Speaker Lucien Lamoureux (Debates, April 29,
1971, p.5338)
The classic definition of parliamentary privilege is
found in Erskine May’s
Treatise On The Law,
Privileges, Proceedings And Usage Of Parliament:
Parliamentary
privilege is the sum of the peculiar rights enjoyed by each House collectively…
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. These “peculiar rights” can be divided into two categories: those
extended to Members individually, and those extended to the House collectively.
Each grouping can be broken down into specific categories. For example, the
rights and immunities accorded to Members individually are generally categorized
under the following headings:
•
freedom of
speech;
•
freedom from
arrest in civil actions;
•
exemption
from jury duty;
•
Exemption
from attendance as a witness.
The rights and powers of the House as a collectively
may be categorized as follows:
the power to discipline, that is, the right to punish
(by incarceration) persons guilty of breaches of privilege or contempt’s, and
the power to expel Members guilty of disgraceful conduct;
•
the
regulation of its own internal affairs;
•
the authority
to maintain the attendance and service of its Members;
•
the right to
institute inquiries and to call witnesses and demand papers;
•
the right to
administer oaths to witnesses;
•
the right to
publish papers containing defamatory material.
These two groupings represent all the privileges
extended to Members of Parliament and the House of Commons collectively. Each
of these privileges will be examined in greater detail and illustrated with
relevant cases later in the chapters.[4]
The House has the authority to invoke privilege where
its ability has been obstructed in the execution of its functions or where
Members have been obstructed in the performance of their duties. It is only
within this context that privilege can be considered an exemption from the
general law. Members are not outside or above the law which governs all
citizens of Canada. The privileges of the Commons are designed to safeguard the
rights of each and every elector. For example, the privilege of freedom of
speech is secured to Members not for their
personal benefit, but to enable them to discharge
their functions of representing their constituents without fear of civil or
criminal prosecution for what might be said in the House and committees. When a
constituency has returned a candidate, it is the electors’ right that this
chosen representative should be protected from any kind of improper pressure,
and particularly from crude violence.
Privilege essentially belongs to the House as a whole;
individual Members can only claim privilege insofar as any denial of their
rights, or threat made to them, would impede the functioning of the House. In
addition, individual Members cannot claim privilege or immunity on matters that
are unrelated to their functions in the House.
Any conduct which offends the authority or dignity of
the House, even though no breach of any specific privilege may have been
committed, is referred to as a contempt of the House. Contempt may be an act or
an omission; it does not have to actually obstruct or impede the House or a
Member, it merely has to have the tendency to produce such results.
What Parliament has considered as “absolutely
necessary” privileges has varied over the centuries. Nevertheless, certain
basic principles relating to privilege have become established. Neither House
individually can extend its privileges, though either House can, formally by
resolution, decide not to claim or apply privileges it has hitherto claimed. No
one House of Parliament has a right to claim for itself new privileges; new
privileges can only be created or old privileges extended by Act of Parliament.
Either House can apply its rights to new circumstances, thereby in some cases
creating new instances of contempt. And finally, each House can individually
adjudicate and punish breaches of its privileges.
Ø
Pre
And Post Parliamentary Constitution Privileges In India
The Government of India Act, 1919 and the Government
of India Act, 1935, as already said, had some limited provisions that laid the
foundation of Parliamentary Privileges in India. Hence, it cannot be said that
prior to coming into force of the Constitution, the concept of privileges was
unknown to India. However, a short
Code of Parliamentary Privileges, for the first time,
came into existence with the Constitution of India.
Prior to the Government of India Act, 1919, there was
no statutory recognition of the privileges. It was surprising that being the
first legislature in India under direct control of the British, the Indian
Council Act, 1861 did not confer any privilege, power or immunity on the Houses
of Indian Legislatures. After the coming of the
Government of India Act, 1919, for the first time,
freedom of speech, although as qualified privilege, was conferred to the Indian
Legislatures. The Act made it clear that there shall be freedom of speech in
both the Chambers of Indian Legislatures. These rules were made by the Governor
General with the sanction of the Secretary of State and the Indian Legislatures
had no power to repeal or alter them. Thus, it is evident that the privilege of
freedom of speech, as granted by the Government of India Act, 1919 was
ultimately subject to the pleasure of the Governor General and Secretary of the
State.
Apart from granting the privilege of freedom of speech,
the Government of India Act, 1919 also conferred immunity to the Members of the
Indian Legislature. The immunity, as conferred by the Act of 1919, did not
protect such persons who published under the authority of House of Legislature,
any report, paper, vote or proceedings.
The Government of India Act, 1935 undoubtedly made
substantial improvements upon State of Affairs that existed before, in respect
of the privilege, power and immunity by making certain provisions in the Act.
The relevant provisions, in respect of privileges of the Federal and Provincial
Legislatures, were contained in Section 28 and Section 71 respectively.
Moreover, it also specified that no person shall be so liable in respect of
publication by or under the authority of either House of Legislature of any
report, paper, vote or proceedings.
Government of India Act, 1935 clearly mentioned that
the Legislature, as an institution, has the power to remove or exclude persons
who infringed the rules or [5]
standing orders or behaved in a disorderly manner.
Apart from this, as it was clearly intended by the Government of India Act,
1935, the Indian Legislature does not have any punitive or disciplinary power
or the status of a Court. Section 28(3) and Section 71(3) of the Government of
India Act, 1935 expressly denied to those legislatures the penal jurisdiction
of the House of Commons and Section 28(4) and Section 71(4) of the Government
of India Act, 1935 obliged the said legislature to approach a Court for
punishing persons who refused to give evidence or to produce documents before
its Committee. The rules, thus, made by the Governor General were to prevail
over rules made by the House.
But, the position was still very unsatisfactory and it
was almost universally acknowledged that rights and privileges of the Members
and Legislatures were very limited. A memorandum was submitted by the President
of Central Legislative Assembly, Sir Abdul Rahim, to the Reform Commission of
Government of India in 1938 for necessary amendment of Section 28 and Section
71 of the Government of India Act, 1935 pointing out
that the Central and Provincial Legislatures in India be given the same
privileges, powers and immunities as were enjoyed by the Legislature in the
Dominion and Colonies. It was considered that unless effective measures were
provided by which Member
could be assured of being able to carry on their
deliberations in the Chamber without interference and molestation and by which
dignity of the legislature was duly protected from outside attacks, it would
not be expected to function to the best advantage.
The ineffectiveness and inadequacy to uphold the
dignity and the right and privileges of the legislatures in India made the
policy makers to rethink on the provisions of the Government of India Act,
1935. The Government of India Act, 1935 failed to safeguard rights and
privileges of Members and officers, who felt entirely helpless against unfair
and malicious attacks of unscrupulous outsiders and newspapers. This chaotic
position was altered by the Independence Act, 1947 which made some significant
changes in provisions and powers of the Government of India Act, 1935. The
Governor General of India, in exercise of powers conferred on him by clause
(i)(c) of Section 9 of the Independence Act of 1947 passed orders to amend the
Government of India Act, 1935.
The Governor General, by virtue of one of his orders,
deleted clause (3) and (4) of the Section 28 of Government of India Act, 1935
which had placed fetters on the law making powers of the Central Legislature on
the subject of its privileges. The intention of the Governor General was to
equate the immunities of the Members of the House of the Indian Legislature
with those of Members of House of Commons. However, Section 71 remained
un-amended and its status quo, as it existed under Government of India Act, 1935
was maintained.
The Draft Constitution also took care of the fact that
the Members of the Parliament need to work effectively and fearlessly. However, it adopted a transitory
mechanism which suggested that until such privileges are not defined by the
Parliament, the privileges and immunities of Members of House of Commons of
United Kingdom at the commencement of the Constitution shall be enjoyed by the
Members of Indian Parliament. The best part of the Draft Constitution was that
it had separate similar provisions of State Legislature and its Members under
Article 169.
The most important of the privileges, namely, freedom
of speech in Parliament and immunity to Members from any proceeding in any
Court in respect of anything said or any note given by them are specially
propounded in Article 105 of the
Constitution of India. This article provides immunity
to a person from any proceeding in any Court in respect of the publication by
or under the authority of either house of Parliament of any report, paper,
votes or proceeding. The Courts are
further prohibited to inquire into the proceeding of
Parliament by virtue of Article 122 of the Constitution of India.
As far as other privileges were concerned, a
transitory mechanism was adopted by the framers of the Constitution. Article
105(3) of the Constitution, as originally enacted, provided that in other
respect, the powers, privileges and communities of Parliament, its committees
and Members, until defined by Parliament by law, shall be the same as those of
House of Commons of the United Kingdom as on coming into force of the
Constitution on 26th January, 1950. The expectation of the Constitution makers
was that the Indian Legislatures, in near future, will codify their privileges,
which did not happen. This clause was however amended in 1978 to provide that
in respect of privileges other than those specified in the
Constitution, the powers, privileges and immunities of
each House of Parliament and its Members 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, its Members and committees immediately before the coming into force of
Section 15 of the Constitution (44th Amendment) Act, 1978 (with effect from
20th June, 1978). This amendment in fact has made only verbal changes by
omitting all references to the British House of Commons, but the substance
remains the same.
Ø Historical
Perspective Of Privileges
In Canada
PRIVILEGE
IN THE PRE-CONFEDERATION BRITISH NORTH AMERICAN COLONIES
From the establishment in 1758 of the first
legislative assembly in Nova Scotia, the common law accorded the necessary
powers to the legislature and its Members to perform their legislative work.
“Members had freedom of speech in debate and the right of regulating and
ordering their proceedings, and were protected from being arrested in
connection with civil cases, because the legislature had first call on their
services and attendance.” As to the
power of an Assembly in the colonies to punish and more especially imprison for
contempt, the situation was not at all clear.
In effect, the rights enjoyed by the Assemblies in the pre-Confederation
period were quite limited. However, as
early as 1758, the House of Assembly of Nova Scotia had an individual arrested
and briefly confined because of threats made against a Member of the Assembly.
In Upper and Lower Canada, the Constitutional Act,
1791, adopted by the British Parliament, was silent on the privileges of the
Legislatures, although by 1801 the
Speaker of the Legislative Assembly in Upper Canada
claimed “by the name of the Assembly, the freedom of speech and generally all
the like privileges and liberties as are enjoyed by the Commons of Great
Britain our Mother Country”. Although it had no statutory authority, the
Assembly of Upper Canada proceeded to fight for and assert many of the same
privileges, such as freedom from arrest while sitting and freedom from jury
duty, claimed by the British Commons. The Assembly also claimed the power to
send for and question witnesses and to punish any individual who refused to
appear or answer questions, using its power of imprisonment to ensure obedience
of its orders. Although challenged on occasion, the Assembly was successful in
enforcing its privileges, “which though not recognized de jure, were at least
recognized de facto”. In the period prior to responsible government,[6]
the Assembly in Upper Canada guarded its reputation by
punishing libels against it in the newspapers and also fought for the right to
initiate money bills, that is, bills for appropriations and taxation. In general, the Assembly of Upper Canada was
satisfied that it could discharge its functions with the privileges it had.
In the same period, the Assembly of Lower Canada also
asserted both individual and corporate privileges freedom from arrest and
freedom from the obligation to appear in court with respect to civil suits
brought against Members, and the right of the Assembly to punish for contempt,
no matter the offender. The Assembly was not afraid to put forward its claims
of privilege against the Crown. In 1820, it blocked the conduct of business at
the opening of a new Parliament because of a dispute over the return of
election writs and again in 1835 over comments made by the Governor about the
privileges of the Assembly.
With the Union Act, 1840 which created the Province of
Canada out of Upper and Lower Canada, and especially following the achievement
of responsible government, issues of privilege were less frequent or serious.
As had been the case in the old colonial assemblies,
the power to commit or imprison for contempt claimed by the Assembly of the
Province of Canada remained an issue. In 1842, it was held “that colonial
legislatures had no power to
commit for contempt outside the assembly, and in 1866
it was held that they had no power to commit for contempt even when committed
in the assembly.”
Ø Role Of Canadian Judiciary With Respect To
Privilege Challenged In The Court
An examination
of privilege in the Canadian context shows that the constitutionally guaranteed
privileges of the House have rarely, if ever, been seriously challenged.
Indeed, there have been only two significant court actions; one relating to
freedom of speech in the House of Commons and the other concerned with the
right of a provincial legislature to control its proceedings.
The first matter, dealing with freedom of speech,
arose in a judicial setting, rather than in the House of Commons itself. In the
case of the Roman Corporation Limited versus Hudson’s Bay Oil and Gas in 1971,
an action was brought against the Prime Minister and the Minister of Energy,
Mines and Resources for announcements made in the House of Commons. In its
ruling, the Ontario Supreme Court disavowed any jurisdiction over statements
made in Parliament based on Article 9 of the English Bill of Rights of 1689.
However, Speakers have always urged Members not to abuse their privilege in
light of the damage that can result through the wide dissemination of their
remarks through the official printed reports of the House and the television
broadcasts of House proceedings.
The second matter involved the right of the House of
Assembly in the province of Nova Scotia, in light of the Canadian Charter of
Rights and Freedoms, to exclude strangers from its proceedings. The case
involved a claim by the Canadian Broadcasting Corporation (CBC) that its
reporters had a constitutional right to film the proceedings of the Nova Scotia
House of Assembly with their own cameras. CBC applied to the Nova Scotia
Supreme Court for an order allowing it to film the proceedings based on Section
2(b) of the Charter which guarantees freedom of expression, including freedom
of the press. The Trial Division and the Court of Appeal both ruled in favour
of the CBC and the Speaker of the House of Assembly appealed to the Supreme
Court of Canada. The Supreme Court allowed the appeal and overturned the
decisions of the lower courts, upholding the absolute authority of the Houses
of Parliament and of the legislative assemblies to control their proceedings
and reasserting the independence of the different branches of government.
Ø Codification Of Parliamentary Privileges
In Indian Constitution
The powers, privileges and immunities of either House
of the Indian Parliament and of its Members and committees are laid down in
Article 105 of the Constitution. Article 194 deals with the powers, privileges
and immunities of the State Legislatures, their Members and their committees.
The language of Article 105 is "mutatis mutandis" the same as that of
Article 194 except that for the [7]
expression "Parliament" in Article 105 the
expression "legislature of a State" is used in Article 194. Hence, a
discussion on Article 105 would be relevant to Article 194 also.
Article
105(1) provides that 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.
Article
105(2) contains two parts. Part one
says that 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. Part two provides that no person shall be liable in respect
of the publication by or under the authority of either House of Parliament or
any report, paper, vote or proceedings.
Article
105(3) again contains two parts.
Part one says that in other respects the powers, privileges and immunities of
each House of Parliament, and of the Members and the committees shall be such
as may from time to time be defined by Parliament by law. Part two says that
until so defined, the powers and privileges shall be those of the House of
Commons of the Parliament of the United Kingdom and of its Members and
committees at the commencement of the Constitution. Accordingly whenever a
question arises with regard to the availability of a privilege, it becomes
necessary to ascertain the powers, privileges and immunities of the House of
Commons as on the 26-1-1950.
In India, some legislative privileges are expressly
mentioned in the Constitution while the others are recognized in the Rules of
Procedure and Conduct of Business in Lok Sabha framed under its rule-making
power.
Ø Freedom Of Speech
For the effective functioning of parliamentary
democracy, the freedom of speech in Parliament is guaranteed. This is to enable
the Members to express themselves freely in the House without any fear or
favour. In England, this freedom was established in the 17th century itself.
This was fortified by the Bill of Rights in 1688.4 In India, the freedom of
speech in Parliament is safeguarded by Article 105(1) and (2).
In Raja Ram Pal v/s Hon’ble Speaker, Lok Sabha
The Apex Court explained that the right to vote and be
represented, though integral to our democratic process, was not absolute and
was subject to certain limitations.
A five-Judge Bench of Guwahati High Court in Yitachu
v/s Union of India observed that:-
there is nothing like an unfettered right to
participate in the legislative process. Such a right is subject to the
regulations made under Art 208 or the Tenth Schedule by the Legislature, as a
collective body. We do not see logically any objection for the Legislature to
stipulate that the freedom of speech/right to vote of a member should be kept
in abeyance in a particular situation without terminating the membership of
such a member.
Also in P.V.Narshima Rao v/s State (JMM Bribery
case),
The majority of the Apex Court explained that the expression
“in respect of” in Article 105(2) must be given a wider meaning so as to
comprehend an act having a nexus or connection with the speech made or a vote
given by a member in Parliament or any Committee thereof. So interpreted it
would include within its ambit, acceptance of bribe by a Member in order to
make a speech or to cast his vote in Parliament or any Committee thereof in a
particular manner. Therefore, the bribe taker MPs, who had voted in Parliament
against no-confidence motion were held entitled to the protection of Article
105(2) and were held not answerable in a court of law for alleged conspiracy
and agreement.
·
DISCIPLINARY POWERS OVER
MEMBERS
A House of Parliament has power to enforce discipline,
to punish its members for their offending conduct in the House, or to expel a
member who conducts himself in a manner unfit for membership or for unbecoming
behaviour whether inside or outside the House.
·
FREEDOM FROM JURY SERVICE
Members of Parliament are exempted from jury service.
Members may decline to give evidence and appear as a witness in a court of law
when Parliament is 'in session. These privileges are founded on the paramount
right of the House to the [8]attendance
and service of its members.
·
PARLIAMENTARY PRIVILEGES IN CANADA
The privileges of the House can be examined from two
vantage points: the rights and immunities of its individual Members and the
rights of the House in its collective capacity. Within this framework, the
individual Member’s rights are subordinate to those of the House as a whole in
order to protect the collectivist against any abuses by individual Members. For
instance, a Member’s individual privileges may be considered suspended if the
House orders that Member to attend in his or her place and answer questions
demanded by the House. It is extremely rare, however, that the rights of the
House collectively will be used to override those of an individual. Some of these immunities are applicable to
officials of the House and to individuals summoned by the House on official
business.
In addition, both the House in its collective capacity
and Members individually have the responsibility to protect from abuse their
rights and immunities, particularly freedom of speech. Members should avoid any arrangement which
might limit their independence as Members: they should not raise trivial
matters as matters of privilege or contempt; and they should not use the
privilege of freedom of speech to be unfairly critical of others in debate. The
House should exercise its powers with regard to privilege and contempt
sparingly and ensure that when exercising its power to punish for contempt, the
action it orders is appropriate to the offence.
The rights, privileges and immunities of individual Members of the House
are finite, that is to say, they can be enumerated but not extended except by
statute or, in some cases, by constitutional amendment, and can be examined by
the courts. Moreover, privilege does not exist “at large” but applies only in
context, which usually means within the confines of the parliamentary precinct
and a “proceeding in Parliament”. With the role of the courts to uphold the
Canadian Charter of Rights and Freedoms as well as the Canadian Bill of Rights,
Members must avoid creating unnecessary conflicts with private rights and
thereby having issues of parliamentary privilege brought before the
courts.
Ø POWER TO PUNISH FOR CONTEMPT IN INDIA
A House has power to punish a person, whether its
member or outsider, for its 'contempt or 'breach of privilege'. A House can
impose the punishment of admonition, reprimand, suspension from the service of
the House for the session, fine for contempt is truly described as the
'keystone of parliamentary privilege' for it is used by the House to protect
its privileges, punish their violation, and vindicate its authority and dignity
The grounds on which a person can be held guilty of
contempt of the House are vague, uncertain and indefinite as these have not
been defined anywhere. The scope of the phrases 'contempt of the House' and
'breach of privilege' is very broad and covers a variety of situations when the
House can take action. Generally speaking, a case of contempt of House arises
when any act or omission obstructs or impedes it in the performance of its
functions, or which obstructs or impedes any member or officer of the House in
the discharge of his duties, or which has a tendency, directly or indirectly,
to produce such results.
Ø PRIVILEGE V/S CONTEMPT IN CANADA
Any disregard of or attack on the rights, powers and
immunities of the House and its Members, either by an outside person or body,
or by a Member of the House, is referred to as a “breach of privilege” and is
punishable by the House. There are, however, other affronts against the dignity
and authority of Parliament which may not fall within one of the specifically
defined privileges. Thus, the House also claims the right to punish, as a contempt,
any action which, though not a breach of a specific privilege, tends to
obstruct or impede the House in the performance of its functions; obstructs or
impedes any Member or Officer of the House in the discharge of their duties; or
is an offence against the authority or dignity of the House, such as
disobedience of its legitimate commands or libels upon itself, its members or
its officers. “The rationale of the power to punish contempt whether contempt
of court or contempt of the Houses, is that the courts and the two Houses
should be able to protect themselves from acts which directly or indirectly
impede them in the performance of their functions.” In that sense, all breaches
of privilege are contempt’s of the House, but not all contempt’s are necessarily
breaches of privilege.
Contempt’s, as opposed to “privileges”, cannot be
enumerated or categorized. As speaker Sauvé explained in a 1980 ruling, “while
our privileges are defined, contempt of the House has no limits. When new ways
are found to interfere with our proceedings, so too will the House, in
appropriate cases, be able to find that a contempt of the House has occurred.”
Just as it is not possible to categorize or to
delineate what may fall under the definition of contempt, it is not even possible
to categorize the “severity” of contempt. Contempt may vary greatly in their
gravity; matters ranging from minor breaches of decorum to grave attacks
against the authority of Parliament may be considered as contempt.
By far, most of the cases of privilege in the Canadian
House relate to matters of contempt challenging the perceived authority and
dignity of Parliament and its Members. Other cases have involved charges made
between Members or media allegations concerning Members. The premature
disclosure of committee reports and proceedings has frequently been raised as a
matter of privilege. However, in those instances where no specific individual
has been identified, the matter has not been pursued even though it might
appear to involve contempt.
The reluctance to invoke the House’s authority to
reprimand, admonish or imprison anyone found to have trampled its dignity or
authority and that of its Members appears to have become a near constant
feature of the Canadian approach to privilege. Though the power of the House to
imprison remains, it is difficult to foresee circumstances arising that would
oblige the House to invoke it. Members have proven themselves to be fairly
thick-skinned when it comes to criticism, even when it appears hard and unfair.
They seem willing to endure such treatment from the press and other media
rather than raise a potential conflict between the authority of the House and
the freedom of the press. There is, however, no doubt that the Canadian House
of Commons remains capable of protecting itself from senseless abuse should the
occasion ever arise.
In only a very few cases in Canadian practice has the
House, or a procedure committee report, recommended a punishment. In the 1987 Parry case, the Committee also
did not recommend punishment and the Member’s apology to the House put an end
to the matter.
The two Canadian decisions, NB Broadcasting and Void were,
at least in retrospect, relatively easy fact situations. Although, as outlined
above, the Court in NB Broadcasting found in favour of the parliamentary
privilege argument, the infringement of the right to freedom of expression did
not seriously prejudice any [9]
individuals, and concerned one of the most sacrosanct
privileges: the right to control over the Chamber during proceedings.
Valid concerned the jurisdiction of the Canadian Human
Rights Commission to investigate allegations of discrimination and wrongful
dismissal brought by the former chauffeur of the Speaker of the House of
Commons. Valid argued that the Speaker’s invocation of privilege with respect
to his dismissal amounted to an overreach, if not a trivialization of the true
role and function of “such lofty doctrine”, and that even if privilege covered
some employees whose duties were closely tied to the legislative process, the
Speaker went too far “in attempting to
throw the mantle of this ancient doctrine over the
dealings of the House with such support staff as chauffeurs, picture framers,
locksmiths, car park administrators, catering staff and others who play
comparable supporting roles on Parliament
Hill.” The Court sided with Valid, rejecting the
Commons’ argument that its privileges included exclusive jurisdiction over the
hiring and firing of all employees as failing to be “so closely and directly
connected with the fulfilment by the assembly or its members of their functions
as a legislative and deliberative body that outside interference would undermine
the level of autonomy required to enable to do their work with dignity and
efficiency”, and thereby failing to meet the necessity test.
Conclusion
Parliament perform important functions as democratic
Institution which broadly fit into three main areas; representation,
legislation and overseeing of executive government. To achieve this objective and keep the executive
accountable and transparent, parliament possesses certain privileges, power and
immunities. Indian parliament is the Gangotri of our democracy. It represents
the will and the aspirations of one billion plus people and is the link between
the people and the government. If
Gangotri gets polluted, neither Ganga nor any of its tributaries can stay
unpolluted. Parliament, like other organs of the government is not sovereign
and owes its origin and authority to the Constitution. Parliamentarians must
maintain highest standards of democracy. Parliament functions through debate,
discussion and not through disruption. There are certain privileges which are
enjoyed by each house of the legislature collectively and by the members
thereof individually. These privileges have been given to the legislature and
its members with the object to enable them to discharge their duties as
representative of the people independently without obstruction with dignity.
Article Information
A CRITICAL ANALYSIS ON PARLIAMENTARY PRIVILEGES IN INDIA AND CANADA (By-Dimple Nitin Rathod)
Authors: Dimple Nitin Rathod
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.