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PARLIAMENTARY PRIVILEGES – COMPARATIVE STUDY WITH DIFFERENT COUNTRIES AND NEED FOR LEGISLATION ON PARLIAMENTARY PRIVILEGES BY: ADV. PALLAVI NITIN PAWAR
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“PARLIAMENTARY PRIVILEGES –
COMPARATIVE STUDY WITH DIFFERENT COUNTRIES AND NEED FOR LEGISLATION ON
PARLIAMENTARY PRIVILEGES”
AUTHORED
BY: ADV. PALLAVI NITIN PAWAR
1. Introduction
- Brief
overview of parliamentary privileges and their significance in democratic governance
-- Parliamentary privilege is a legal immunity enjoyed by members
of certain legislatures, in which legislators are granted protection against
civil or criminal liability for certain actions done or statements made in the
course o f their legislative duties. Sources of parliamentary privileges
There are five sources
of parliamentary privileges. These are as follows –
·
Various laws made by Parliament
·
Parliamentary conventions
·
Rules of both the Houses
·
Constitutional provisions
·
Judicial interpretations
- Explanation of the purpose
and scope of the comparative study.
1. Legal
Framework Comparison: It allows lawmakers to compare the legal provisions and constitutional
safeguards that grant parliamentary privileges in different countries. This
helps in understanding the variations in legal interpretations and application.
2. Practical Application
Analysis: By examining how parliamentary privileges are practically exercised,
enforced, and interpreted in different contexts, lawmakers can gain insights into
the real-world implications of these privileges.
3. Protection
of Democratic Institutions: Understanding parliamentary privileges is crucial for
protecting the independence and integrity of legislative bodies. Comparative
studies can help identify gaps in legal protection and provide solutions to
strengthen democratic institutions.
4. International
Standards and Norms: Comparing parliamentary privileges with international
standards and norms helps ensure compliance with global best practices and
human rights principles.
5. Policy
Development and Reform: Comparative studies can inform policy development and
legislative reforms aimed at enhancing transparency, accountability, and the
rule of law within parliamentary systems.
The following are the uses of the Parliamentary privileges –
·
The
privileges given helps in maintaining the honour, dignity
and authority of the members of Parliament.
·
The immunities, exemptions, or rights given to the members of
the parliament houses along with the parliament committees secure the
effectiveness of actions
decided by them.
·
These privileges
secure the members of each house of the Parliament
from any kind of obstruction in regards to their action.
·
The first point under
the collective privilege includes the ability
or power to conduct debate,
publish reports, or proceedings. Also, having
the power to stop others
from doing so.
·
Keeping
strangers out of the room to
address any emerging issues.
·
Making and following your own rules for governing commercial activities and procedures.
·
Ability to immediate notification of the member’s
conviction, arrest, imprisonment, custody and release.
·
No
member can be arrested forty days before and after the parliament session. Note
this privilege is only applicable in civil matters.
·
Another parliamentary privilege is that the member has the right to express or speech. No one has the power to question
them.
·
The parliament members have the right to decline to give tests or
evidence in court.
There were several reasons
why India chose
to adopt the Parliamentary form of government. These were as follows –
·
Familiarity
with the System: The constitution-makers were fairly familiar with the
parliamentary system as it had been
in operation in India during the British colonial rule (modern history legacy).
·
Priority
to More Responsibility: The parliamentary system of government clearly outlines
the responsible behaviour
of the executive, and the makers of the Constitution prioritised the principle of responsibility on the highest pedestal.
·
Avoid Conflicts: The framers of the Constitution sought to avoid the conflicts
among the executive and legislature which are bound
to occur in the Presidential system prevalent in the USA.
·
Rich Diversity: India is one of the most heterogeneous States and most composite plural
societies in the world. Representation of these diversities was seen as more promising
by the parliamentary system.
·
Coherence
between Legislature and Executive organs: The privilege of having a
parliamentary form of government is
that it upholds a balance between the legislative and executive organs of the government.
·
Prevents
Despotism: In the parliamentary form of government, the executive authority is
placed in the group of individuals
which includes the Council of Ministers, which
reduces the chances of arbitrariness while making decisions.
·
Ready
Alternative Government: If the party which is currently ruling loses the
elections, the State’s Head sends an invitation to the
opposition party to form a new
government.
·
While
considering the nation’s rich diversity, the parliamentary form of government
was the best-suited option available
to the makers of the Constitution, which has maintained its sanctity to date and
is expected to serve the same
in the future1.
2.
Conceptual Framework: Understanding Parliamentary Privileges
-
Definition and historical evolution
of parliamentary privileges.
ORIGIN
In the United Kingdom,
it allows members
of the House of
Lords and House of Commons to speak freely during ordinary parliamentary proceedings without
fear of legal action on the grounds
of slander, contempt
of court or breaching the Official Secrets
Act. It also means that members of Parliament cannot be arrested
on civil matters for statements made or acts undertaken as an MP within
the grounds of the Palace of Westminster, on the condition that such statements or acts occur as part of a proceeding in Parliament—for
1 Unacademy – Parliamentary Privileges – Benefits
of parliamentary form of government available at unacademy.com/content/ last seen on 05/04/2024.
example, as a question to the Prime Minister
in the House of Commons.
This allows Members
to raise questions
or debate issues which could slander an individual, interfere
with an ongoing court case or threaten
to reveal state secrets.
There
is no immunity from arrest on criminal grounds, nor does the civil privilege
ent irely extend to the devolved
administrations in Scotland
or Wales. A consequence of the privilege
of free speech is that legislators in Westminster systems
are forbidden by conventions
of their House from uttering certain words, or implying that another me mber is lying.
Similar rights apply in other Westminster system countries such as Canada and Australia. In the United States, the Speech or Debate Clause in Article One of the United States Constitution provides
for a similar privilege, and many
state constitutions provide
similar clauses for their state legislatures2.
3.
Parliamentary Privileges in Selected
Countries
- Comparative analysis
of parliamentary privilege provisions in countries such as the United Kingdom, Canada, Australia, India, and
South Africa.
§ The
United Kingdom:
o
The
Parliament at Westminster enjoys similar privileges, including freedom of
speech, immunity from arrest, and the
right to regulate its own proceedings.
o
These
privileges are established through a combination of statute, common law, and precedent.
§ Canada:
o
The
Parliament of Canada also has established privileges for its members, including freedom
of speech, immunity
from arrest, and the
right to punish breaches of privilege.
o
These privileges are outlined in the Constitution Act, 1867 and the Parliament of Canada Act.
§ Australia:
o
The
Parliament of Australia follows similar principles, with privileges enshrined
in its Constitution. Members enjoy
freedom of speech, immunity from arrest, and the right to regulate
their own proceedings3.
4.
Scope of Parliamentary Privileges
2 Prime Legal Leaders in the law of ideas available at
primelegal.in/2023/03/12/Indian-parliamentary-privileges/ last seen on 01/04/2024.
3 Indian Polity available at
drishtiias.com/daily-updates/daily-news-analysis/parliamentary-privileges last
seen at 03/04/2024.
-
Analysis of the types of privileges
granted to parliamentarians, including freedom of speech,
freedom from arrest, and immunity
from legal proceedings.
Freedom of Speech
in Parliament:
·
The freedom
of speech and expression guaranteed under Article 19(2)
provided to a member of the parliament is different. The freedom of speech guaranteed to citizens under
A. 19 (1) (a) is therefore separate and independent of Article 194 (1) and
does not control the first part of clause 1 of A.194.
·
It has been guaranteed under Article 105(1) of the Indian constitution.
But the freedom is subject
to rules and orders which
regulate the proceedings of the parliament. He/she cannot be sued for defamation for something which was said by him/her
during the session.
·
Freedom
of speech should be in accordance with the constitutional provisions and subject
to rules and procedures of the parliament, as stated under
Article 118 of the Constitution.
·
Under
Article 121 of the Constitution,
the members of the parliament are prohibited from discussing the conduct of the judges of the Supreme Court and the High Court.
Freedom from Arrest:
·
The members
enjoy freedom from arrest in any
civil case 40 days prior and after the adjournment of the house and also when the house is in session.
·
No member can be arrested from the
limits of the parliament without
the permission of the house to which s/he belongs so that there is no hindrance in performing their
duties.
·
If the detention of any members
of the parliament is made, the chairman
or the speaker should be informed by the concerned
authority, of the reason for the arrest.
·
But a member can be arrested
outside the limits of the house on criminal
charges against him under the Preventive Detention act,
the Essential Services Maintenance Act (ESMA), the National Security
Act (NSA), or any such act.
Right to Prohibit the Publication of Proceedings:
·
Article 105(2) of the Constitution says that
no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member
of the house.
·
For coherence
and national importance, it is essential
that the proceedings should be conveyed
to the public to aware them of what is going on in the parliament.
Right to Exclude Strangers:
The members
of the house have the power
and right to exclude strangers who are not members of the house from the proceedings. This right is very
essential for securing free and fair discussion
in the house
5.
Limits and Restrictions on Parliamentary Privileges
-
Examination of case law and
legislative reforms addressing abuses of parliamentary privileges.
§ Case
Background:
o
In
the 1993 P V Narasimha Rao case,
certain members (MPs) of
the Jharkhand Mukti Morcha (JMM) were
accused of accepting bribes in exchange for voting against a No- Confidence motion.
o
This
case highlighted allegations of corruption within the parliamentary system,
raising concerns about the integrity
of legislative processes and the accountability of elected representatives.
§ Court’s Observation in 1998 Case:
o
The Supreme
Court's ruling in 1998
established immunity for MPs (Members
of Parliament) and Member of
Legislative Assembly (MLAs) from prosecution in bribery cases as long as they fulfilled their end of the
bargain.
·
The
Supreme Court held that the bribe takers who cast their vote against the no- confidence motion were immune from
criminal prosecution under Parliamentary Privilege
(Article 105(2)).
o
This
decision underscored the importance of stability in governance and the
functioning of parliamentary democracy.
o
The court's
observation prioritised the smooth operation
of the government over individual
accountability, suggesting that prosecuting lawmakers for bribery could potentially disrupt the stability
of the government.
§ Court’s Observation in 2024 Case:
o
The
7-Judge Constitution Bench overturned the 5-Judge Bench verdict of P.V. Narasimha
Rao v. State Case, 1998.
·
Wherein it was established that the Member of Parliaments and Member of Legislative
Assemblies enjoyed immunity if they cast vote in the House after taking bribes
for it.
o
The SC emphasised the detrimental
impact of bribery on democratic principles and governance.
o
The
court highlighted that accepting a bribe is a separate criminal act, unrelated
to the core duties of lawmakers
within the Parliament or legislative
assembly.
·
The
Section 7 of the Prevention of
Corruption Act, deals with ‘offence relating to public servant being bribed’.
o
Therefore,
the immunity provided under Articles 105 and 194 of the Constitution does not extend to cases of bribery.
·
This
decision signifies a shift towards prioritising accountability and integrity in governance over stability alone, aiming to uphold the
ideals
of
a responsible, responsive, and representative
democracy in India.
6.
Judicial
Review and Oversight of Parliamentary Privileges
-
Evaluation
of the role of courts in reviewing parliamentary privilege claims and adjudicating disputes between the legislative and judicial branches.
-- The Constitution guarantees certain rights and immunities to the
House and individual MPs so that they
may discharge their parliamentary duties effectively. These rights and
immunities are called parliamentary
privileges. For example, MPs enjoys a wide power of freedom of speech and expression on the floor of the House, or
while working in Parliamentary Committees. They cannot be held liable for
anything that they say or any vote that they make in a court of law. Other examples
of parliamentary privileges may include:
freedom to publish parliamentary proceedings without incurring any liability and freedom from
arrest in civil cases. Further, parliamentary proceedings may not be
called into question in any court of law for irregularity of procedure so that a separation of powers
is maintained. However, in several
decisions, the courts have asserted
their power to exercise judicial
review over parliamentary privileges and proceedings (and state legislative assembly privileges and proceedings). For example, the Supreme Court has held that the Speaker’s decision
to disqualify an MP for defection is subject to judicial review as the Speaker is discharging an adjudicatory function4.
7.
Interplay
with Human Rights
and Constitutional Principles
-
Assessment
of the compatibility of parliamentary privileges with international human rights standards. -- While
parliamentary privileges are essential for the functioning of democratic institutions, they must be
balanced against international human rights principles, such as freedom of expression, non-discrimination, and the right to a
fair trial.
Some
argue that parliamentary privileges, such as immunity from prosecution or
freedom of speech within parliamentary proceedings, may conflict with human rights standards if they are used
to shield parliamentarians from accountability for human rights abuses or
discriminatory speech. Others contend
that these privileges are necessary to ensure the independence and effectiveness of parliamentary oversight
and debate.
4 Public Engagement with the Legislative Process – PRS legislative Research available at prsindia.org/files/parliament/discussion_papers last seen at 05/04/2024.
In
practice, the compatibility of parliamentary privileges with international
human rights standards depends on how
these privileges are exercised and interpreted within each country's legal system. Courts and human rights
bodies may need to weigh competing interests and consider the specific circumstances of each case when determining the limits of parliamentary privilege in relation to human rights.
Ultimately, achieving compatibility between parliamentary privileges and international human
rights standards may require legislative reforms, judicial oversight,
and a commitment to upholding both democratic principles and human rights
obligations.
8.
Public
Perception and Accountability
-
Examination
of public attitudes towards
parliamentary privileges and their impact
on democratic accountability. -- In the Indian Parliament, legislation typically involves three stages corresponding to
three readings of a bill. In the first reading, the bill is introduced, and its contents and aims are
explained. After the second reading, the bill may be taken into consideration
and put to an immediate vote. It can
also be referred to a select committee
of the house in question or to a joint committee of both houses, or even
circulated for public opinion.
However, this option is almost never exercised after a bill has been
introduced. Instead, most bills are
referred to select committees that report back to Parliament. At this point, the ministry in question can request that
the bill be recommitted to a
committee or be taken up for
consideration by Parliament. A bill placed in Parliament is then scrutinized
clause by clause, with members also
having the right to move amendments. After all clauses have been dealt with and all amendments considered, the bill is
put forward for its third and final reading. At this stage, no major amendments can be entertained, although amendments that pertain to clarification
can sometimes be adopted.
Under the doctrine
of collective responsibility, the Cabinet must accept all amendments, even if the approval is
post facto. After the bill has been put to a vote, the speaker certifies the
passage of the bill, and it is sent to the second chamber where the entire process is repeated.
After a bill has been passed by both houses, it is sent to the president
and, if approved, becomes law5.
-
Analysis
of mechanisms for holding
parliamentarians accountable for abuse of privileges,
including parliamentary ethics committees and electoral
processes –
5 The Indian Parliament as an Institution of Accountability by Devesh Kapur and Pratap
Bhanu Mehta (Democracy, Governance and Human Rights Programme
Paper Number 23 January 2006) (United Nations
Research Institute for Social Development)
1.
Parliamentary
Ethics Committees: Many legislatures have Ethics Committees responsible for investigating allegations of misconduct by parliamentarians, including
abuse of privileges. These committees
typically have the authority to conduct inquiries, hear evidence, and recommend disciplinary actions, such as censure,
suspension, or expulsion from the legislature. However, the effectiveness of Ethics Committees may
depend on factors such as their independence,
transparency, and enforcement powers.
2.
Electoral
Processes: Elections provide a mechanism for holding parliamentarians
accountable to the electorate. Voters
can assess the conduct of their representatives and choose whether to re- elect them based on their performance,
including their respect for parliamentary privileges and adherence to ethical standards. In some cases, electoral defeat
can serve as a powerful form of accountability for parliamentarians who abuse their privileges.
3.
Legal
Remedies: In cases where parliamentarians engage in serious misconduct or abuse
of privileges, legal remedies may be
available through the judicial system. Courts may have the authority
to review actions taken by
parliamentarians, particularly if they violate
constitutional or human rights standards. Legal challenges
can serve as a check on the abuse of privileges and ensure compliance with the rule
of law.
4.
Public
Scrutiny and Media Oversight: Public scrutiny and media reporting can play a significant role in holding
parliamentarians accountable for their actions. Investigative journalism, public debates, and civil
society advocacy can shine a spotlight on abuses of privileges, putting pressure
on parliamentarians to address misconduct and uphold ethical
standards.
5.
Internal
Codes of Conduct: Many legislatures have internal codes of conduct or rules of procedure
that govern the behavior of parliamentarians and outline standards of ethical conduct.
These codes may include provisions specifically addressing the abuse of
privileges and mechanisms for enforcement, such as
sanctions or reprimands.
Conclusion
- Reflections on the challenges and opportunities in regulating parliamentary privileges across different legal systems.
§ Need
to Codify Parliamentary Privileges:
o
Clarity and Precision:
Codification would provide
a clear and precise definition of parliamentary
privileges. It would specify what
constitutes a violation of privileges, eliminating any ambiguity.
·
A
statute would establish a precise threshold beyond which no penalty may be meted out for privilege violations.
o
Enhanced
Accountability: Clearer guidelines for parliamentary privilege would facilitate better accountability mechanisms,
enabling parliamentarians to exercise their privileges responsibly while also subjecting them to appropriate scrutiny and oversight.
o
Modernization
and Adaptation: Codifying parliamentary privilege would provide an opportunity
to update and modernize existing laws to reflect contemporary governance practices and societal norms, ensuring
that legislative privileges remain relevant and effective in a rapidly evolving political landscape.
o
Checks and Balances:
Codification would introduce
checks and balances
on privileges, preventing their misuse.
It would curb unnecessary curtailment
of press freedom.
§ Need
not to Codify Parliamentary Privileges:
o
Risk
of Encroachment on Parliamentary Autonomy: Codifying parliamentary privilege could potentially lead to encroachments on
the autonomy of the legislature by subjecting
parliamentary affairs to greater judicial
scrutiny or government intervention.
o
Against
Constitutional Mandate: Article 122 deals with the restrictions on courts not
to inquire into proceedings of
Parliament. It further states the following: The validity of any proceedings in Parliament shall not be called in question
on the ground of any alleged irregularity of procedure.
o
Loss
of Flexibility: Codification may restrict the flexibility of parliamentary
privilege, making it challenging to adapt to unforeseen circumstances or changing political
dynamics that may require a more nuanced
approach to legislative affairs.
o
Complexity and Lengthy Process: The process of codifying parliamentary
privilege could be complex and
time-consuming, requiring extensive deliberation and consensus- building
among stakeholders, including
legislators, legal experts,
and civil society
organizations.
From the discussion made above it is clear that, parliamentary privileges
are a special case to customary rule
and are expected to permit parliament and Member of Parliament to play out
their obligations unafraid of any
threat fear or penance, and short of hindrance. Further, we have discussed in brief two components of
parliamentary privileges i.e. Exclusive Cognizance and Freedom of speech and debate. It has been also regarded as
requisite in allowing parliament to perform
their function smoothly. . As per discussion made above, UK, India, and South
Africa practice non-accountability protection only with regard to ratione loci whereas France and Australia practices both types of
privilege. Further, with regard to ratione materiae India, UK, and Australia
follow non-accountability protection against civil but not against
criminal proceedings whereas France and South Africa provides protection
to both civil and criminal. Further, we have observed that rights and immunities provided to the members and
parliament are too wide that they
have chances of getting encountered with general public or other pillar of the government. In last we have observed
that the Constitution of India and South
Africa provides that other
privileges, then the Freedom of Speech and Freedom of Publication will be prescribed by the National Legislation but
it has not yet been done. On the other hand, Australia enacted their National Legislation acts which are Parliamentary
Privileges Act 1987. The United Kingdom
even having an unwritten constitution tries to codify the law related to
parliamentary privileges but failed
to do so and at last, the Joint Committee on Parliamentary Privilege 1999 suggest, that there is no need to codify
the law. Interestingly, the United Kingdom which is a source for parliamentary privileges and was followed by many
countries including India has not comprehensive
but randomly tries to codify the law related to parliamentary privilege under different statutes. Hence, it can be said
that there is need to codify the parliamentary privileges in India since the practices we follow today in India might not have any relevance in U.K. Since it is clear that to keep a pace with the
development of society it is necessary to implement the law which is need of the hour. Similarly,
codification of parliamentary privileges is need of hour. Articles 74 and 75 enshrine the
parliamentary system at the Centre and Articles 163 and 164 at the states. There are mainly two types of parliamentary privileges that the members of Parliament enjoy that we discussed in today’s article.
In this article describing parliamentary privileges in India, we studied
the concept of parliamentary
privileges in length. We covered several other topics such as the privileges
offered in Parliament, the use of
Parliamentary privileges, types of Parliamentary privileges, and other related
topics.
Bibliography :-
1.
Basu,
Durga Das “Constitutional Law of India” Lexis Nexis, 2019.
2.
Austin, Granville
“The Indian Constitution : Cornerstone of a Nation” Oxford
University Press, 1999.
3.
Dr. CD Jha’s – Judicial review of legislative Aots, second edition revised 2009 Lexis Nexis, butterworth,Wadhwa Nagpur.
Article Information
PARLIAMENTARY PRIVILEGES – COMPARATIVE STUDY WITH DIFFERENT COUNTRIES AND NEED FOR LEGISLATION ON PARLIAMENTARY PRIVILEGES BY: ADV. PALLAVI NITIN PAWAR
Authors: ADV. PALLAVI NITIN PAWAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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