Open Access Research Article
STUDY OF PARLIAMENTARY SOVEREIGNTY AND PRIVILEGES IN UNITED KINGDOM AND INDIA
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Article Details
STUDY OF PARLIAMENTARY SOVEREIGNTY AND PRIVILEGES IN UNITED
KINGDOM AND INDIA
AUTHORED BY
- SMITA R. NAIK
(Roll No: 05/2023: Semester-II, LLM, PES’ Modern
Law College, Pune)
Abstract
Privileges are granted to parliamentary members for proper and smooth
functioning without any interference.
Concept of the privileges and comparative approach in UK and India has been
studied in this paper. Indian parliamentary form of democracy inherited from British system. Indian constitution is in
written form whereas of UK is unwritten. Lack of written constitution in UK, powers of parliament seems to be
exhaustive and undefined while of
Indian parliament are focused towards the provisions of constitution. In India,
the form of democracy is embedded as
parliamentary-democracy and salient features of its parliament so recognized as part of the Government. The
restrictions on UK parliament are mainly self-
imposed in view of representations as per world standards. In India,
self-imposed regulations and limitations are accomplished by formulating rules of procedure
in parliament from time to time,
all are being subject to constitutional provisions.
Keywords: Parliament, Privileges/Immunities, UK, India
Introduction
The parliament, democratic institution that is an executive government in
turn plays significant role in legislation and provides undeniable assistance in the form of power, immunities and privileges. Parliament and privilege are derived from Anglo-Latin word ‘parliamentum’ and ‘privilegium’, means speaking conference and exceptional individual right as immunity, respectively. Parliamentary privileges mean exceptional rights / immunities provided to the house or members or any committee thereof to
accomplish the objective[1].
In brief, these privileges are regarded as requisite in allowing parliament to perform their
function smoothly. Rather these privileges are a special case to customary rule that are expected to permit parliament and its
member to play out their obligations unafraid of any threat fear or penance and short of hindrance. In UK and
Australia the privileges seem to be result
of civil and political struggle between commons and crown; whereas in India,
France and South Africa constitution acts as a direct source for the privileges[2].
Feature of the privileges in Indian constitution being borrowed from
British constitution that is prime
source of other borrowed features like parliamentary government, rule of law, legislative procedure, single citizenship,
cabinet system, prerogative writs and bicameralism[3]. In history, India is one of those rare
examples wherein representative institutions were made available by foreign government by slow degrees and evolved gradually. In general the same parliamentary
privileges are enjoyed by both the houses particularly in UK viz., House of Commons and House of Lords; similarly in India by Lok Sabha and Rajya Sabha[4].
It is basic principle that these privileges are designed to ensure that parliamentarians are able to carry out duties free from any interference.
In most of the democratic countries in the world, these exceptional rights are granted to legislative members to a
certain extent an exemption from the
ordinary law of the land[5].
Scenario in United Kingdom
Basically, the privilege is to parliament just as is prerogative to the
Crown. Each House is protected in
respect of the conduct of its internal affairs by the privilege. It extends not
only to members of the house in
carrying out duties but also to the staff, lay members, witnesses and others taking part in work of the
house[6].
Activities of the individuals whether members / non-members are not protected just because they occur within
parliament. These privileges include
freedom of speech; exclusive cognizance of control by the House of its affairs;
power to discipline its members for
misconduct and punish anyone, whether a member or not for contempt
of parliament; no interference in going
to, attending at and going away
from parliament; they cannot be
arrested in civil cases; exemption from summons to attend court as a witness; court documents cannot be
served within the parliamentary precincts and absolute protection of all papers published
by order of the House etc.[7] Amongst
these, certain prominent
features have been illustrated
below.
Freedom of speech: Members need to be
able to speak freely in the House and in committee, uninhibited by possible defamation claims. It is found
statutory form in Article- 9 of the Bill of
Rights 1689 and affords legal immunity to members for what they say or do in
proceedings in parliament cannot be
challenged in any court or place out of parliament wherein, meaning of both ‘proceedings and place’ have not
been defined. It is one facet of a broader principle that parliamentary affairs are free from interference by the
courts often called exclusive cognizance that consists of a collection of related rights and
immunities[8].
Freedom from arrest: SO 82 and Common
laws govern this privilege and traditionally it extends from 40 days, before and after the parliamentary
session. It covers any form of arrest or
detention, except on criminal charge or contempt of court. SO 82 states that
notification of any court order for
imprisonment / restraint of member should be given to the House which is read out in the chamber and recorded in
the minutes of proceedings. This privilege would not protect the member suffering from mental illness, being detained
under Mental Health Act.[9] Courts have held that both Houses are
exempted from statute law, e.g. on
employment, health and safety at
work and from regulation of sale of alcohol. Joint Committee on Parliamentary Privilege (2013–14) called for legislation
to abolish the privilege of freedom from arrest and passed legislation creating individual rights which could
impinge on activities of House should in future contain express provision.
Attendance before other
legislatures: House of Commons does not have power to summon member of
the House of Lords to appear before its committees, but any member of
the House of Lords requested by commons committee
to attend as a witness
is free to do so, if the member
thinks fit[10].
Jury Service: Members of the
House are liable for jury service. Judges have discretion in relation to jurors with important public service commitments[11].
Disciplinary and Penal powers:
The House’s disciplinary and penal powers are part of the control exercised by parliament over its
affairs. The House has right to institute inquiries and require attendance of witnesses and production of documents and
willful failure to attend committee
proceedings or answer questions or produce documents could be judged to be contempt of parliament. House of Lords has
historically possessed power to punish contempt by imprisonment, fine and reprimand. Member can be disqualified
temporarily either by statute or at
common law, for reasons such as bankruptcy or holding of disqualifying judicial office.
Parliamentary privilege is however, something that forms part of the law
rather than putting members of Parliament above the law[12].
Scenario in
India
Origin of parliamentary privileges in India can be traced as far back as
1833 when a fourth member was added
to the governor-general’s council following Charter Act
of 1833. A new type of legislative machinery came into existence that laid foundation of an institution that ultimately grew into
full-fledged law-making body by process of evolution[13].
Privileges along with other
provisions are contained in Article 79-122 and have been set out in Article 105 & 194. According to constitution, Articles 105 & 122 and 194 & 212 outline
privileges of parliament and state legislature, respectively. Article 105: There shall be freedom
of speech in parliament. 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. Article 122: Validity of any proceedings in parliament
shall not be called in question in
court on the ground of any alleged irregularity of procedure. Article 194:
There shall be freedom of speech in
the State legislature. No member of state legislature shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in state legislature or any committee thereof. Article 212: Validity of
any proceedings in the state legislature
shall not be called in question in court on the ground of any alleged
irregularity of procedure.[14]
Government of
India Act, 1935 provided that there should be freedom of speech in the legislature. Parliamentary privileges are categorized into two viz., collective and individual. Former
are enjoyed by parliament as a whole and latter are secured to members on an individual level[15].
Collective privileges: Reports, debates
and proceedings can be published or denied to be published by the parliament. 44th
Amendment Act allowed media to publish true reports of parliamentary proceedings except same related to house’s secret
sitting. Parliament has right to
exclude strangers from its proceedings. Secret sittings of houses are also part
of privilege. Two houses can make
rules for regulation of their procedures, conduct of their business and adjudication of their work. Parliament can
suspend or expel members in case of breach of privilege. Parliament is entitled to punish the outsiders or members for any breach of privilege by using any of reprimand,
admonition and imprisonment. Parliament has right to receive immediate information on arrest, detention, conviction,
imprisonment and release of member.
Any enquiries would be initiated by parliament and so can the right to call
upon the witnesses. Proceedings of
the houses and committees of parliament can’t be inquired by the court. No person (member / outsider) can
be arrested and no legal process can be served
within precincts of the house without permission of the presiding officer.[16]
Individual privileges: No arrest of
member of parliament can take place during its session. Also, members can’t be arrested 40 days before and after the
session’s beginning and end of the
session. Members of parliament are entitled to the freedom of speech in the
houses. They are not liable to any
court proceedings for the speech given in parliament / committees. However, it is regulated using the rules
guiding such provisions of the house. Besides, they are exempted from jury service. They can refuse to give evidence
and appear as a witness in a case pending
in a court when Parliament is
in session[17].
Misuse of privileges and
immunities: Rajya Sabha is a constitutional body. Every member of parliament has to obey the rules of
conduct, that is all things that are in the constitution and the law have to be obeyed by every
member. Privilege and immunity conferred on them by the constitution are part of their rights and protected from any
hostile action by anybody. If anybody
tries to misuse or misbehave with the privileges and immunities, his actions
will be considered as attack on
parliamentary sovereignty / security of India / citizens, one will not only lose their
own rights but also future generation’s rights[18].
Discussion
Under the English constitution, parliament with its legislative authority
is King along with two houses is
supreme and its sovereignty cannot be challenged anywhere although has no its written charter to define or limit
its power and authority. Its powers are result of convention but are now recognized as completely absolute,
uncontrolled and unfettered.[19] Concept symbolizes that parliament or
legislature has absolute sovereignty and is supreme over the executive or
judicial bodies. Sovereignty is principle of UK constitution and it makes parliament as supreme legal
authority that can create or end any law.[20]
There have been extensive changes for
the better or for the worst in parliamentary privileges in UK. Firstly it gives an edge to
parliamentarians over common folk and secondly they become bound by
duty and amenable to the needs of the common
folk.
Since
India was under the British rule its common laws and practices has roots in its legislature. Constitution clarifies that
sovereignty under Indian political system vests in the people.[21]
Mala fides / ulterior motives attributed to parliament in making law within its competence can never make such law unconstitutional. Sovereignty is derived from the people in spheres marked by the constitution.[22] Today, by sovereignty means ‘popular sovereignty’ and not ‘parliamentary
sovereignty’.[23]
Constitutional 44th Amendment (Act of 1978, w.e.f. 20-6-1979) made some minor cosmetic modification in
Articles 105(3) and 194(3) but core
text remains the same. Certain legislative rights are stated clearly in the constitution while others are acknowledged
in ‘Rules of Procedure and Conduct of Business’ in Lok Sabha framed under its rule-making power.[24]
A citizen’s entitlement to a basic democracy will be lost if the
privileges are not granted in line
with the Fundamental Rights. The parliament must ensure that no rights
guaranteed by the court are
violated. It is important to keep in mind that abilities do not corrupt them.
The house cannot adopt a British equivalent while deciding the privileges, instead
it must determine whether it matches Indian democracy and does not degrade state’s
Republic characteristic.[25]
Landmark Judgments
Related to Parliamentary Privileges
UK:
1.
In
Stockdale v Hansard (1839) found that Hansard, although ordered by Parliament
to publish transcripts of its
debates, did not enjoy the protection of parliamentary privilege, Parliament immediately passed the
Parliamentary Papers Act 1840, which gave absolute civil or criminal immunity to papers[26].
2.
Lord Dunedin
L J, however, explicitly
recognized that absolute
privilege attached to speeches
in the House of Commons for motives of high public policy’; but he added that
it was not right that such privilege,
intended to safeguard liberty of discussion, should be turned into
‘an abominable instrument of oppression
(Adam v Ward [1917] AC 324 ).[27]
3. Wellesley v Duke of Beaufort (Long Wellesley's case) (1831) Lord Brougham L C observed that ‘if court of law or equity
entertains an opinion that Member of either House of parliament has privilege of parliament, that court is bound to
give him the benefit of the privilege, and to give it to him with all its incidents. His Lordship added, would be true even if a claim to the privilege
had actually been abandoned by parliament, because the court had
no means of knowing judicially, short of a statute, what Parliament had decided. But no subsequent judicial authority seems to have followed Brougham's
view in its entirety.[28] India:
1)
No
parliamentary immunity for vandalism: Supreme Court recently observed that law makers cannot indulge in criminal acts on
Parliament or Assembly floors and then take cover behind the right to
free speech[29].
2)
K
Anandan Nambiar case (1951): Supreme Court held that a Member of Parliament
could claim no special status higher
than that of an ordinary citizen and is as much liable to be arrested, detained, or questioned even
during the session[30].
3)
State
of Kerala v. K. Ajith and others (2021): Supreme Court has observed that
privileges and immunities are not
gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.[31]
4)
Scope
of parliamentary immunity: Tej Kiran Jain v. N. Sanjiva Reddy (1969): Supreme Court held that Article 105(2) grants
immunity as regards anything said in parliament. The word anything is equivalent to everything said during the
sitting and course of business of parliament. Once it was proved that parliament was sitting and its business
was being transacted, anything said during the
course of that business was immune from proceedings in any court. This
immunity is not only complete but is as
it should be.[32]
Conclusion
Comparison of parliamentary sovereignty, parliamentary and immunities in
UK and India is vast with surplus
illustrations to analyze. Legislative sovereignty and privileges of parliament / members are not built up in a
day rather established over the span of history. In nutshell, sovereignty activated
privileges that slowly fringed parliaments to claim the sovereignty. In most of the developed world’s
democracies like India, popular
sovereignty lies with common men to protect interests thereby certain privileges are guaranteed to parliamentarians.
It is sound appreciation of privileges which are special case to customary rule and are expected to permit parliament
and/or members in performing the obligations
unafraid of any threat,
fear or penance and short of hindrance.
Members are shielded from prosecution, investigation, arrest, detention
and trialing India and UK for the views expressed or votes cast by them in the exercise of their
parliamentary function; however, members are not protected from criminal
proceedings. In addition, freedom of speech of the members is also
applicable in parliament.
In order to keep pace with development of the society, it seems to be
necessary to implement the law. There
are ambiguities within the law and so also lack of political will and willingness of parliamentarians to stretch
the limits of constitution.
[1] Macreadie & Gardiner, (2010).
Introduction to Parliamentary Privilege. 10.13140/ RG. 2.1.2674. 6723 available
on JETIREW06099 JETIR www.jetir.org last seen
on 1-3-2024
[2] Singh (2019) Parliamentary
Privileges in India: Comparative study with UK, France, Australia & South Africa.
JETIR, 6 (3), www.jetir.org (ISSN-2349-5162)
last seen on 1-3-2024
[3] Ibid 2
[5]
Singh (2018).
Comparative Analysis of Parliamentary Privileges in UK and India: An Overview Ind.
J. of Law and Human Behavior. 4 (2) DOI: http://dx.doi.org/10.21088/ijlhb.2454.7107.4218.7
last seen on 1-3-2024
[6]
https://en.wikipedia.org/wiki/Parliamentary_privilege_in_the_United_Kingdom
last seen on 2-3-24
[8]
Ibid 5
[9] Privileges Report, 1983-84
[10] Ibid
[11] Amendment 9: Consolidated criminal
practice direction: 2005 LJ, 2013–14, 1621
[12]
House of Commons
Committee of Privileges, Select committees and contempts: clarifying & strengthening
powers to call for persons, papers and records (1st Report, 2021–22, HC 350)
[13] https://testbook.com/ias-preparation/parliamentary-priviliges-and-immunities last seen on 1-3-2024
[14]
https://vajiramandravi.com/quest-upsc-notes/parliamentary-privileges/ last seen on 2-3-2024
[17]
Ibid 14
[18] Ibid
14,
[19] Ibid
5
[20] https://en.wikipedia.org/wiki/
parliamentary_sovereignty#cite_note-refDOliver1-2 last seen on 2.3.24
[21]
Kashyap S. C. (2006). Parliamentary
Procedure, Univ. Law Pub. Co., 2nd edn
[23]
http://www.thehindu.com/
opinion/op-e d/b r i n g- t h e - h o u s e - u p - t o - d a t e
/article 19253239.ece 11.7.17 last seen on 2.3.24
[24]
Jain M. P., Indian Constitutional Law, Lexis Nexis, 8th edn
[25]
(https://testbook.com/ias-preparation/ parliamentary-privileges-and-immunities last seen on 1.3.24
[28]
Ibid 25
[29]
https://unacademy.com/content/clat/study-material/legal-reasoning/privileges-and-immunities/) last
seen 2.3.24
[32]
Ibid 25
Article Information
STUDY OF PARLIAMENTARY SOVEREIGNTY AND PRIVILEGES IN UNITED KINGDOM AND INDIA
Authors: SMITA R. NAIK
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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