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Parliamentary privileges in India: A legal analysis of the lacunae and assembling privileges
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Parliamentary privileges in India:
A legal analysis of the lacunae and
assembling privileges
Authored By - Adish Joy
Abstract
The parliamentary privileges are
considered of prime importance. The privileges provided to the members of the
parliament are of great relevance since it is a direct reflection of the
representative behold and capacity of the people and hence the increased
restrictions in any manner will directly synthesise by contributing to the
violation of civil liberty. However, as Article 19(2) of the constitution
reasonably restricts the fundamental rights of the citizens, the rights of the
parliamentarians also have to undergo similar scrutiny to strike the most
requite balance. The need to analyse the underlying lacunae behind all
privileges of the parliament hence is on par with the requirement of an
improved system that mirrors the democracy of the nation. The class privileges
and the individual privileges of the parliament, alongside the sources and
facts, compile to contribute towards the effective functioning of both houses.
Moreover, there have been precedents laid down time and again by the judiciary
in association with the need for the striking balance necessity. The working of
the prevalent committee that exclusively works for the privileges as the
committee of privileges of semi-judicial nature is one of the essential factors
of the overall working. Deriving the relevance from the very origin of
parliamentary privileges and the stance of the said aspect in today’s democracy
could precisely identify and lay down the differences at their best. The paper,
therefore, analyses the parliamentary privileges in detail and the associated
shortcomings and privileges thereafter.
Introduction
The parliamentary privileges in
operation in India are one of the derived underlying principles of the
constitution that have been derived similar to the numerous other features such
as the emergency provisions from Germany, fundamental rights identifying its
origin from the Magna Carta Charter and Bill of Rights, a concurrent bill from
Australia and goes the list.[1]
Hence, the former has its origin in the British Parliament alongside the
general functioning of the parliament. Whether it be the Rule of Law, the
procedure followed in and out through legislature and the parliament, the
bicameral and cabinet structure are all developed from the functioning of the
parliament. The efficient and effective working of the parliament is ensured
with the regulatory framework established in the parliament alongside the
privileges of the parliamentarians. The powers possessed by the members of
parliament as enshrined in the parliamentary rule book and implied together
constitute the privileges. Apart from the right of single transferable voting
eligibility, the parliamentarians are also enshrined with a set of additional
privileges. Hence, on one hand, there is the prevalence of proportional representation
and non-deprived rights of the parliamentarians.[2]
Origin & history
The prime understanding of the
compilation of the rights of parliamentarians of both the houses, the upper and
the lower houses as the parliamentary privileges as an extended facility of the
existing laws of the land and thereby the gradual development of these
immunities have a story of origin to understand and foreign cases to exemplify
from. The Charter Act, of 1833 could be traced down as one of the prime sources
of parliamentary privileges. The present type of legislative machinery and its
working had come into existence thereafter. The prescribed Charter Act (Later
renamed as Helena Act, 1833),[3]
led to the formation of a new legislative structure and set-up already. Hence,
in the quest to form a completely separate law-making body, the legislative
started operating full-on and hence came into existence thereafter
operationally.[4]
The specifications concerning the
parliamentary privileges came into existence in the Indian Councils Act, of
1909. After the demands raised post the declaration of Queen Victoria in 1906
the demand for home rule for the first time in India by INC, parliamentary
privileges turned out to be one of the fundamentals of the reforms considering that
one of the aims of the reform included creating positive changes in the
country.[5]
The Act that is prominent for the introduction of the Minto Morley reforms
hence, resulted in the slight dilution of the parliamentary privileges.[6]
The Act is prominent for the furtherance of more Indians and their increased
participation in the parliament hence, is also known for the parliamentary
privilege part of it.
This was by way of the introduction
of indirect election techniques. The right to freedom of speech was reinstated
in the parliament post the Government of India Act, 1935 and hence validated
the civil right inside the premises of the parliament. Therefore, the relevance
of the provision was validated in the parliament post the Act. Hence, as far as
the parliament is concerned the government is dealt with by the constitution,
then by the rules of procedure of the house and the remaining rests with the
statutes of governance.
Examining the role of privilege
The prime reasoning behind providing
the parliamentary privileges and rights to the parliamentarians is the aim of
ensuring that the exemptions and rights provided therein gives the
parliamentarians, an effective tool of functioning wherein the independence of
functioning can be ensured and so the effectuation of the actions they take on
behalf of the public at large in every aspect and manner whatsoever. The
privileges at their best help in maintaining the honour, authority and dignity
of the house without counter-effecting the parliamentary intent in any way. The
immunity from being held liable for the words uttered inside, and fair
criticism within the limits of parliamentary rules make sure that the entire
mechanism is flexible in nature and is not unruly or arbitrary as the actions
are directly taken against the members in the manner prescribed. Until and
unless the powers become arbitrary in nature and the overpowering as a result
of the granted immunity could be avoided, the privileges stand valued and not
undone.
Prevalent parliamentary privileges in
India
The parliamentary privileges present
to the members of the parliament can be categorized into several layers.[7]
From the first category being, the basic freedom of speech in the parliament,
further the presence of immunity to the members of the parliament about what is
being said and what is being voted or decided upon within the parliament
premises, the attached liability about the publications made in association
with the parliament, existent speeches and related aspects via publications
including newspaper, reports, votes and so on. Once the first category
privileges are discussed the ones that follow are the second category
privileges wherein the privileges enjoyed by the House of Commons members
persist until and unless taken away or disrupted by the law in any manner.
The other categorization that has
been prevalent concerning the privileges include both collective and individual
privileges wherein the former is enjoyed by the parliament as a whole and the
latter by the individuals alone which falls on the members of parliament
individually. Concerning the collective rights via the relevant insertion in
the 44th amendment of the constitution, wherein from a point of not
being able to publish any information of the parliament, there has been the
provision that associated and allowed the publication of all the relevant
information except the ones circulated during the secret sittings of the
parliament. Further, the parliament proceedings are not permitted to be viewed
by strangers out of the privacy of the discussion in any manner. The very fact
that secret sittings are allowed in the house precisely stands out as a
reasonable privilege of the parliament. Now, concerning the rule-making powers,
the parliament is free to make rules concerning the procedural regulations,
business conduct and the work adjudication of the house post the discussion of
affairs. The parliament is also vested with the right to receive information
about the arrest, detention, conviction, imprisonment and release of both the
outsiders and the members. The parliament is free to conduct relevant enquiries
and thereby the right to call upon the witnesses as well as it may deem fit.
The parliament is also immune from
being called or enquired by the court via any intervention whether it be on the
houses or the committees If at all. Any arrest or associated legal issue has to
take place inside the parliament, it has to take place with the permission of
the concerned presiding officer, that is the speaker or the vice president in
the lower house or the upper house respectively. The sources of these
privileges as aforesaid could be traced back to the provisions of the
constitution parliamentary laws, rules established and laid down by the houses,
the conventions of the parliament and the judicial pronouncements concerned.
The individual privileges of
parliamentarians include non-arrest rights wherein while the parliament is in
session no arrest can be executed against the members of the parliament in
whatsoever offence commission, secondly, the freedom of speech is enshrined on
the members of parliament as enshrined to the common men. There cannot be any
court proceedings against the parliament members for the speeches made inside
the premises of the parliament in any circumstance. The regulations of the
speech however are made via the rules of the parliament and hence not by other
means in any manner. Moreover, there have been exemptions concerning jury
service as well, wherein they have the right to refuse to provide, evidence, or
give statements or testimonies in the court while the parliament is in session.
Hence, in clubbed unanimity there exist enumerable privileges.
The niche of the constitution
The parliamentary privileges can
nowhere be brought toward discussion in anyways unless the relevant articles
are concerned. i.e. Articles 105 and 194 are duly discussed. Under Article 105,
the freedom of speech inside the parliament shall be only regulated with the
rules and standing orders similar to the overall operation of Article 19(2) of
the constitution and not otherwise. The corresponding articles to the
aforementioned articles are Articles 194 and 212 of the constitution. So until
and unless barred by the aforesaid rules and standing orders, the rights of the
parliamentarians remain intact.[8]
The former right lays down or mirrors Article 19(1)(a) and while the latter
concrete the provision even further with the reasonable restriction imposed
being discussed alongside. As per Section 194, no parliamentarian, in any case,
can be held liable for what has been spoken by him inside the parliament in any
manner whatsoever and also concerning the publications that are released
associated with the said speeches, remarks or words uttered in the parliament
session towards the members or in general. Also, when the immunity or privilege
is defined, it has to be on par with the up-to-date rules and regulations
framed for the house and its smooth operation as prescribed and not otherwise
and the same shall turn out to be contradictory.[9] On
one hand when the articles refer them to be rights or privileges, they sound
more like immunities to the members, especially concerning their rights to not
be arrested thereof.
Precedential study
The case laws that precedentially
dealt with the parliamentary privileges and the law courts came to a level of
resolution in the case of Keshava Singh [10]wherein
the publication followed by the printing of the pamphlets associating the functioning
of the UP Legislative Assembly had been brought in as a matter of concern
before the court wherein the speaker was convicted for the breach of privilege
of the parliament. However, the prime matter involved was the demand for the
arrest of Keshava Singh who has been a member of the parliament for contempt of
the house against whom a warrant was issued.
The arrest and detention of the parliamentarians were sought to be
replaced by their presence before the assembly with an explanation instead.
Further, to explain the set of terms
parliamentary privileges were brought about in the case of Raja Ram Pal v. the Hon’ble Speaker[11],
wherein a definition was brought about as: “A special right, advantage or
benefit conferred on a particular person. It is a particular advantage or favour
granted to one person as against another to do certain acts.” Hence, the
court addressed parliamentary privilege as a matter of special right unlike the
ones that are pre-bestowed and exclusive in nature, that have been granted from
a higher authority being a summation of a fundamental right. Concerning the
immunity of the transactions inside the parliament has been laid down in the
case of Tej Kiran Jain v. Sanjeeva Reddy[12]
wherein the court drew the line of the part where a transaction is identified
to have started inside the house of parliament, then it deems to be immune from
being proceeded before any court of law. Dating back for the first time, the
concept of freedom of speech was brought about in the 17th century
and hence was declared to be established in the case of Sir John Eliot.
Also, in the case of the JMM Bribery
Case, the privilege was defined to the extent that even the bribery collected
for garnering votes in the parliament was considered to be included under the
privileges of the parliament and hence is expected to be condoned. On a
differential note, in the case of Wason v. Walter[13],
the court took the focal point to the aspect that the parliamentary proceedings
have to be communicated to the public considering the paramount importance of
the information although prioritising certain settings and other information to
the public as to be retained within the four walls of the parliament
considering the secrecy. The stance is followed in India as well wherein there
prevails partial transmission of information inside and outside. Moving ahead
right after the other, the cases multiplied concerning the multiple
observations that covered privileges one after another. In the case of K Anandan Nambiar v. Chief Secretary[14],
Governor of Madras, the court held against the privileges stating that there
exist no additional privileges to the members apart from the existing rights of
the common people. [15]
State the landmark case, the
Searchlight case, wherein on the other hand, the Supreme Court favoured the
parliamentary privileges by stating that publishing the contents discussed in
the parliament cannot be considered an agreeable action and hence is to be
condemned. Hence the breach of privilege was considered as a matter of concern
in the case. It was held that:
“We do not think it would be right to
read the majority decision as laying down a general proposition that whenever
there is a conflict between the provisions of the latter part of Article 194(3)
and any of the provisions of the fundamental rights guaranteed by Part III, the
latter must always yield to the former. The majority decision, therefore, is
taken to have settled only that Article 19(1)(a) would not apply and Article 21
would.”
In the case of Gunupati
Keshavram Reddi v, Nafsul Hussain[16],
the right as bestowed under Article 22(2) of the constitution was considered
with prime relevance and the arrest over the breach of parliamentary privilege
was condemned and the order was quashed by the court. Therefore, the case laws that have made
reference and remarks to the parliamentary privileges prevalent hence goes with
the list. [17]
Benefits to the members & prime
limitations in exercise
The prime advantages alongside the
free and fair usage of the powers of the parliamentarians include multiple
aspects governing the principles within the parliament and the representative
capacity of the members. Primarily, the fact that the province of separation of
powers, there exists an undeniable possibility of friction between the arms of
government, the legislature and the executive. The checks and balances are
ensured with no disturbance caused whatsoever. Further, when there are reduced
restrictions, decision-making becomes quicker and smoother. This is primarily
because there is no scope of time constraints out of time taken due to the
imposed restrictions over the parties. Concerning the requisite personnel and
cost incurred, the overall reduction is evident in the best ways possible due
to the fact the ensure system is less expensive in operation compared to the
presidential form of governance. Therefore, benefits are such that there exists
no breach of the laws of privilege and hence ensuring that the voices are being
heard without any restrictions in a whatsoever manner as prescribed.
On the contrary, there exist certain
disadvantages to the existent advantages due to multiple reasons. Primarily,
the high chance of arbitrariness in operation. Further, there is a high chance
of misappropriation of power and arrogance that will govern the houses of the
parliament due to the unquestionable nature of the arguments or immune
statements made by the members of the parliament. The further added fact of
loyalty of the Prime Minister towards the ruling party will increase the
possibility of bias and hence increased favouring towards the people. The
chances of instability in the functioning of the parliament and thereby the
increased uncertainties in the functioning and powers of the parliament is the
possibility of usage of veto power causing a vote of no confidence against the
government. The functions of the cabinet are also such that the same can
overload the present powers of both houses making the entire functioning
complex and difficult for the executant. Finally, the lack of specialization
within the parliament can lead to inefficient functioning making it difficult
and complex to operate altogether.
On one hand, the privileges provide
immunity wherein the overall functioning becomes easier operation due to the
freedom enshrined upon the parliamentarians concerning their representation in
the houses, while on the other hand, the absolute sovereignty will end up
giving excessive powers to the members of the houses wherein the judiciary is
also not subsisting the powers to make in unnecessary interruptions to the
functioning of the governance inside the house of parliament or legislature.
The non-interruption of the judiciary, however during multiple has resulted in
numerous jargon which is left unquestioned and not asked about irrespective of
being major violations and disruptions over the civil rights of the members of
the houses.[18] For
instance, if the European Court of Human Rights (ECHR) is taken into
consideration, the courts have always favoured and upheld the rights of the
citizens rather than making it taxing for the members in whatsoever manner
prescribed.[19]
However, alongside the liberty bestowed, the courts also prescribe the houses
to take reasonable care over the entire machinery to prevent a laissez-faire
system of governance inside the houses of the parliament.
Conclusion
The overall study hence, precisely
implies that parliamentary privileges are a combination of both reasonable
restrictions and unreasonable arbitrary exercise of powers. The entire
functioning of the machinery hence is aimed at ensuring that the reasonable
capacity of the parliament in undertaking representative capacity on behalf of
the electorate is undertaken in an undisturbed manner and format in the best
ways possible. In finality, the relevance of parliamentary privileges alongside
the lessons taken from the British parliamentary system hence makes the overall
working effective and precise. [20]
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[3] Tinker, I., India’s One-Party
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[4] Sakthivel, P., Jawaharlal
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[5] Jacob, A., Centre-State
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[6] K. P. Joseph, Mess in
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[11] Raja Ram Pal v. the Hon’ble
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[12] Tej Kiran Jain v. Sanjeeva Reddy,
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[14] Anandan Nambiar v. Chief
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Article Information
Parliamentary privileges in India: A legal analysis of the lacunae and assembling privileges
Authors: Adish Joy
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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