Parliamentary Privileges in India

IN NEWS:

• The Supreme Court recently rejected a plea filed by the Kerala Government seeking permission to withdraw cases against its MLAs for vandalism in the Kerala Assembly in 2015.
• In 2020, a motion for breach of privilege was moved in the Maharashtra legislative assembly against Arnab Goswami, the Editor-in-Chief of Republic TV.

WHAT ARE PARLIAMENTARY PRIVILEGES?

• Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
• The Constitution has also extended the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the Attorney general of India and Union ministers.
• But these privileges do not extend to the president though he/she is an integral part of the Parliament.
• They were adopted from the British constitution.
• When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament.

CLASSIFICATION:

Parliamentary privilege is the sum of certain rights enjoyed by each House collectively and by members of each House individually: Parliamentary privileges can be classified into two broad categories:

1. Collective Privileges: Those that are enjoyed by each House of Parliament collectively. They include:
   • Make rules to regulate its own procedure and the conduct of its business and to adjudicate upon such matters.
   • Exclude strangers from its proceedings and hold secret sittings
   • The right to publish its reports, debates and proceedings and also the right to prohibit others from publishing the same.
   • Punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion, in case of members).
   • Right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
   • Institute inquiries and order the attendance of witnesses and send for relevant papers and records.
   • The courts are prohibited to inquire into the proceedings of a House or its committees.
   • No person (member or outsider) can be arrested, and no legal process (civil or criminal) can be served within the precincts of the House without the permission of the presiding officer.
2. Individual Privileges: Those that are enjoyed by the members individually. They include:
   • Freedom of speech in Parliament: No member is liable to any proceedings in any court for anything said or any vote given by him in Parliament or its committees. This freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament.
   • Protection from arrest in civil cases during the session of Parliament, 40 days before the beginning and 40 days after the end of a session. This privilege is not available in criminal cases or preventive detention cases.
   • Exemption 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.

SOURCES OF PRIVILEGES:

• The Parliament has not made any special law to exhaustively codify all the privileges. They are based on five sources:

1. Constitutional provisions:
   • Article 105 explicitly mentions two privileges: the freedom of speech in Parliament and right of publication of its proceedings.
2. Various laws made by Parliament:
   • Eg: The Code of Civil Procedure, 1908, provides protection from arrest in civil cases during the session of Parliament, 40 days before the beginning and 40 days after the end of a session.
3. Rules of both the Houses:
   • Eg: ‘Rules of Procedure’ empower the Chairman to regulate the admission of strangers and order their withdrawal from any part of the House.
4. Parliamentary convention
5. Judicial interpretations

PROCEDURE:

• On a motion being moved in a House of legislature alleging breach of legislature’s privileges, the Speaker/Chairman of the House may refer the matter to a Privileges Committee if he finds that there is a prima facie case in the motion moved.
• The Privileges Committee has quasi-judicial powers. It conducts an inquiry in the matter, seeks explanation from those concerned and makes a recommendation based on the findings to the legislature for its consideration.
• Thereafter, it is for the legislature concerned to take action on such recommendation and punish or warn the person or close the matter.

PRIVILEGES Vs. FUNDAMENTAL RIGHTS:

• In Pandit M.S.M. Sharma v. S.K.Sinha case, popularly known as the ‘Searchlight case’, a constitutional bench of the Supreme court held that that the right to speech and expression guaranteed under article 19(1)(a) would be subservient to the privileges.
• In Keshav Singh’s case, the Supreme Court clarified that Articles 20 and 21 would be applicable even when Legislatures exercised their powers in respect of their privilege.
• In Raja Ram Pal case, the Supreme Court ruled that privileges may be subject to Fundamental Rights on a case to case basis. It also secured for itself the power to review the exercise of privileges by Parliament.

WHY THEY ARE ESSENTIAL?

• For democratic accountability:
  • Democratic accountability and free flow of dialogue are the sine qua non of representative democracy. The representatives are given certain powers and privileges so that the House may function independently, fearlessly and represent the will of the people.

• Upholds independence of the house:
  • Parliamentary privileges allow the house to perform its duties without interference from the executive, judiciary or any other outside agency.
• To ensure Parliament’s dignity:
  • Without these privileges, the Houses can neither maintain their authority, dignity and honor nor can it protect the members from any obstruction in the discharge of their parliamentary responsibilities.
• Codification may undermine Parliament’s power:
  • If the parliamentary privileges are codified, they will be considered law as per Article 13. This would make the privileges subject to fundamental rights and hence to judicial scrutiny, thereby violating the powers of parliament to manage its own affairs.

CRITICISM:

• Contradicts constitutionalism:
  • The founding fathers envisaged codification of parliamentary privileges by Parliament by law. But the absence of codified laws gives unfettered power to the Parliament, which goes contrary to the idea of constitutionalism.
• Outdated concept:
  • Parliamentary privileges originated during the struggle for democracy and citizen’s rights in Britain, between a monarch and Parliament, as kings used to interfere in Parliamentary affairs. However, such situations do not exist in India.

• Undefined boundaries:
  • Since no law has been made and these privileges remain undefined, it has been a matter of debate that what constitutes the breach of privilege and what punishment it will entail.

• Protects corrupt members:
  • Legislators have relied on privileges to protect themselves from corruption charges. The best example is the P.V. Narasimha Rao case. Also, protection from arrest 40 days before and after each session, coupled with three parliamentary sessions, means the representatives have protection throughout the year.
• Tool to suppress genuine criticism:
  • The restrictive interpretation of the Supreme Court holding freedom of speech subject to legislative privileges has been misused from time to time, mostly as a weapon against journalists and critics.
• Violates separation of power:
  • The decisions of the speaker, who acts as complainant, advocate and the judge, may be influenced by his/her political affiliations. It also violates the separation of power between the judiciary and legislative.
• Absent in major democracies:
  • The house of representatives of The United State of America is functioning efficiently without any penal provisions.

WAY FORWARD:

There is a need for proper codification of privileges, as suggested by the National Commission to Review the Working of the Constitution in its report in 2002.  For this, India can look into Australia, as the country has codified the privileges and working without much tussle since 1987.

An independent and competent tribunal is best suited for the trial of cases related to breach of privileges. Courts must also revisit its earlier judgments and find a right balance between Fundamental Rights of the citizens and privileges of legislature.

PRACTICE QUESTION:

Q. Parliamentary privilege is the sum of certain rights enjoyed by each House collectively and by members of each House individually. Elaborate?