India, the land of culture is known for being the world’s largest democratic nation. The power to make laws and regulations for such a nation of varied interest is vested with the Parliament. The parliamentarians, being the representatives of the citizens of India, are blessed with certain privileges and exceptions. Originally, the Indian Constitution envisaged two kinds of privileges under the umbrella of Article 105, one was freedom of speech in the parliament and the second one was the right of publication of its proceedings.
Now, the question which arises is how can we define parliamentary privileges? As Dicey said ‘is harder to define than the extent of the indefinite powers or rights possessed by either house of parliament under the head of privilege or law and custom of parliament’. The term privilege means
‘special right, advantage, or immunity to a particular person. It is a special benefit or honor’.
A privilege may be referred to as a special right, advantage, or immunity granted or available onlyto a particular person or a group of persons. The Constitutionof Indiaguarantees certain privilegesand exceptional rights to the members of Lok Sabha and Rajya Sabha. Parliamentary Privilege is defined by Sir T.F. May as ‘Some of the peculiar rights enjoys by each House collectively as a constituent part of the Parliament and by the members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals’.
Defined under Article 105 of the Indian Constitution, the members of parliament, the parliament members are exempted from all kinds of civil and criminal proceedings against them for any act done while discharging their functions as a parliamentarian. The privileges last till the person is a member of either house of the parliament. The moment he ceases to be a member of the parliament, the privileges are called off. The idea of privileges has been taken from the British Constitution with a view to uphold the sanctity and supremacy of the parliament.
Taking a look back at the History
Prior to the forty-fourth amendment, the Constitution of India provided the members of Parliament and the State Legislatures with privileges and immunities as enjoyed by the members of House of Commons. Originally, the Constitution of India envisaged two privileges as under Article 105, one of which was freedom of speech in the parliament and the other one was the right of publication of its proceedings.
Parliamentary Privileges have found their place in the olden days as well, though in a much different form. In Vedic period, there was a system of two assemblies, Sabha and Samiti; keepinga check on the actions of the King. The assemblies had their own privileges.3
In the 1600s, the East India Company came to India to expand their business and for trade, but eventually started interfering the governance, and slowly and gradually established their own rule. With the advent of Charter Act, an emphasis was stressed upon legislative centralization. The claim of privileges was seen in demand under the Charter Act.
The entire position of parliamentary powers and privileges were consolidated in the Government of India Act, 1915. Prior to this act, the legislators enjoyed nominal privileges and did not go beyond regulating the functions of the house, upkeep the order, granting permissions or ordering them to withdraw. However, after the Government of India Act, the privilege of free speech was bestowed upon the members of the parliament, followed by the immunity against arrest and detention in the year 1925.
After Independence, when the Constituent Assembly was stressing over the making of the Indian Constitution, Dr. B.R. Ambedkar in response to the question of embodying privileges to the parliamentarians, observed that the privileges enjoyed by the parliamentarians are not limited to the freedom of speech and immunity from detention. The Parliamentary Privileges extends to the rights of the Parliament as against the general public and also against the individual members of the parliament. Thus, the privileges enjoyed by the parliamentarians are wide and are difficult to define. He observed that ‘Under the House of Commons' power and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual Member of Parliament for anything that has beendone by him which brings Parliament into disgrace. These are very grave matters e.g., to commit to prison. The right to lock up a citizen for what parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into disrepute.’
Privileges enjoyed by the Parliamentarians
Indian Constitution has envisaged certain provisions so as to provide immunity and rights to the members of both the houses of Parliament. Sir Thomas Erskine has defined ‘Parliamentary Privileges’ as the sum of specific rights enjoyed by each house of the parliament collectively and is a constituent part of Parliament, and by the members of every house of parliament one by one, without which they could not proceed with their functions, and which exceed those possessed by different bodies and people.
The Rights and Immunities enjoyed by the Parliamentarians can be broadly categorized into the following:
1. Individually enjoyed by the Member of Parliament
a) A member of Parliament, when the parliament is in session, may refuse to appear in the court of law or to present any evidence in court.
b) Members of the Parliament enjoy the immunity which prevents them from getting arrested 40 days prior and after the session.
c) No case proceeding can be initiated against any member of parliament for whatever he says or whatever bill he votes for during the parliamentary session.
2. Collectively enjoyed by the Members of Parliament
a) No person, whether member or not, cannot be arrested and no legal proceeding can be initiated against such person, within the parliament house without the approval of the officer of the house.
b) Parliament has the power to exclude guests and visitors from the meeting of either house of the parliament.
c) Parliament has the power to hold a secret meeting in the matters of national security or any matter of grave importance.
d) Parliament has the power to penalize a member or any alien for breach of privilege and can also expel or suspend any member.
e) No court has the right to scrutinize or investigate the proceedings of any house of the parliament or the committees.
Provisions of the Indian Constitution
Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof-
1. Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
2. 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, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
3. In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, 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 and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act 1978.
4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.-
1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
2. No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
3. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming
into force of Section 26 of the Constitution (forty-fourth Amendment) Act, 1978.
4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
Tej Kiran Jain v. Sanjeev Reddy
In the case of Tej Kiran Singh v. Sanjeev Reddy, the Supreme Court of India held that once it has been proved that the parliament was in session and its affairs were transacted, anything said or done duringthe course of the transaction of its affairs was immune from any proceeding in any court.
P.V. Narsimha Rao v. State (JMM Bribery Case)
In the case of P.V. Narmismha Rao v. State (JMM Bribery), the court held that the privilege of immunityto exempt the member from court proceedings as envisaged under Article 105 clause 2 should be extended to cover the scope of bribes considered by the member of parliament for the purpose of voting in the parliament in a particular form.
The privileges have been bestowed upon the members of parliament by the Constitution of India with a view to ensure smooth functioning of the affairs and transactions of the parliament. However, the rightsso conferred must always be in conformity with the provisions of the Constitution of India for the members of the parliament represent the citizens of India.
The Parliament and the State Legislatures have a duty not to make any law which stands in contravention of the fundamental rights guaranteed by the Indian Constitution. It is the duty of the members of the parliament not to misuse the privileges and to work in the favor of the general interestof the nation and the general public.
I’d like to conclude by quoting the Peter Parker principle, ‘with great power, comes great responsibility’.This above quoted saying must be kept in mind while exercising one’s power and the governing bodies should always be on a vigil.
1. Oxford Dictionary, 10th Edition.
2. Constitution of India
3. Committee on Privilege and Ethics, Lok Sabha Secretariat
4. M.P. Jain, Outlines of Indian Legal and Constitutional History
5. Indian Kanoon