PRIVILEGES OF PARLIAMENT NOW & THEN

DR PARVEEN QAMAR

Parliament in India is one of the most important pillars standing with an aim to
achieve the goals of national reconstruction and nurturing the values of freedom
, secularism and democracy. As a microcosm of the nation it has consistently
reflected the feeling, hopes and aspiration and even weakness and frustrations
of the people. It has been considered as the most vital political institution on
whose working depends nations success. But all this is possible only if its
members devote themselves whole-heartedly to meet the rising expectations of
the teaming millions. A proper exercise of their duties and responsibility want
certain liberties and immunities on their part so as to enable them to carry out
their obligations unhindered by external force and internal pressure what we call
them parliamentary privileges.
The term privilege does not mean any special benefits or entitlements enjoyed
by Members of Parliament or state legislators but the immunity from ordinary
law that, together with the potential exercise of parliamentary powers, enables
the Houses of Parliament (and state legislatures) to carry out their primary
functions of legislating, debating and inquiring more effectively, efficiently and
independently.
The word Privilege in parliamentary parlance stands for certain rights and
immunities enjoyed by each House of Parliament and its Committees
collectively, and by the members of each House individually without which they
cannot discharge their functions efficiently and effectively. They are
indispensable for an effective democratic process. These power and privileges
are the result of hard painful struggle stretched over centuries. It will not be
wrong to say that people in every empirical period fought to grab them in order
to work smoothly and uninterrupted and also with respect.
Article 105 (3) of the Constitution of India says "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]" 1.
Significance of the Privileges: Among the three pillars of the Indian
government (Legislature, Executive and the Judiciary) Parliament is the most
important one. Commanding a superior position over others due to the nature of

the work it is associated with it is imperative to enable the members perform in

a free and frank atmosphere. Powers and privileges make an important part of
the law and customs of the Parliament. They tend to preserve the relationship
between the legislature and the judiciary and with the press as well. It is a
popular fallacy that the procedure and practices of the Indian Parliament is the
replica of the west ministers model and what is there in our hand is nothing but
it is for what the English people fought for years to get the status parallel
enjoyed by the Lords and Abbots since that time they considered mere
petitioner. So they struggled very hard to have a say in the legislation.
Of course the British Parliament have inspired us a lot and played a significant
role in shaping up of our constitution but there is no denying the fact that over
the decades our Institution itself has gone through a tremendous changes,
accommodating new challenges and identifying new problems. After
independence the first task in hands of the Constituent Assembly was to frame
the constitution that suited best to the country. Even though the British model
was the influencing force for structuring the Constitution. The influence might be
because of our long exposure and familiarity to the British Culture but the
constitution maker never ignored the conditions and traditions peculiar to India.
This is very much evident from the fact that Indian Parliament is not as much
sovereign as the British is. Thus to maintain the dignity and upholding the
tradition in the legislature and enhance the pristine value of the house as well as
that of their own legislative members need certain liberties which we simply
refer as privileges and immunities.

Historical Background: Privileges, which are available now were never found in
the similar fashion. In the 11th century king used to take advices on state
matters from the great men. Later on that assembly of great men took the form
of committee which then became an assembly court. Though they were

assigned the specific duties but never ever their decision was considered final.
Rather the king had the final veto. The royal courts were held thrice a year,
Chritsmas, Easter and Witsun where the archbishop, bishops, earl, thegns,
abbots, knights had to be present other wise they were penalized for their
absence.
In the later half of the 12th century Henry II held great council where bishops,
earls and barons were invited to discuss various issues. In 1258, the barons at
oxford demanded yearly three parliaments. During this period though the king
relied upon small number of personal advisors who were usually drawn from the
baronage group but due to complexities of matter men of expertise even from
the non-baronial background were also included. Thus two bodies were existed
side by side -- a general assembly consisting the tenant-in-chief used to meet at
intervals to advice the king on major issues, whereas the small body of personal
advisors, which used to assist him in day-to-day matter. Parliament is the
successor of the occasional assembly, still retaining its character justified first
time its character in 1258. In 1275 commons were included in a more genuine
manner in the national assembly to discuss the affairs of the kingdom some
thing more than the mere financial matter. The Parliament of 1295 was called
the model Parliament because of its complete embodiment of all the characters.
However the statute of 1322 did not include the lower clergy whose consent was
necessary in matters touching the king and the realm though was insisted in
1321. That withdrawal of lower clergy helped them to unite and form the
commons into one body. In 1376 the practice was started to elect the speaker so
that their agreed reply could be reached to the king. Also the impeachment
process, though not in a perfect shape, was first started in the same year
against Edward. The king declared the commons lawful in discussing the
financial matters in 1407 and in 1455 the first express claim for the liberty of
speech was made in the commons. Though with the passage of time the
discussions in the English Parliament were free and unrestricted however in
every reign every higher authority had his or her own method to restrict the
deliberations. 1586 saw the commons insisted to enquire themselves into the
election dispute and in 1667 they resolved that all the aid provided to the king
by the commons and the rate or tax ought not to be altered by the lords. During
1628 the king was made to sign the petition of rights. On his denial he was put
on trial, condemned and executed. Parliament proclaimed England a

Commonwealth without the ordinances of the king or the lords. By 1688 -- 89,
during the Hanover period, Britain had become the limited monarchy and
Parliament established supremacy over the royal prerogatives. The Septennial
Act of 1716 contributed to the strength of the House of Commons whereas their
(House of Commons) victory of democratization was ultimately established in
1919.
Important Privileges of Parliament: Though our constitution does not
exhaustively enumerate all the privileges of parliament or state legislature but it
simply lays down under Article 105(3) and 194 (for state legislature) that other
powers and privileges of the House and its Members and Committees would be
the same as those of the House of Commons in England on the date of
commencement of the constitution.
The important privileges of each House of Parliament and of its members and
committees are:
(A) Those Specified in the Constitution

Freedom of speech in Parliament. The constitution says,

"subject to the provisions of this Constitution and to the rules and
standing orders regulating the procedure of Parliament, there shall

be freedom of speech in Parliament "2.

Immunity to members. The constitution says, "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"3.
Constitution prohibits the court in respect of proceedings. It
says " (i) The validity of any proceedings in Parliament shall not be
called in question on the ground of any alleged irregularity of
procedure"4.
"No officer or member of Parliament in whom powers are
vested by or under this Constitution for regulating procedure or the
conduct of business, or for maintaining order, in Parliament shall be
subject to the jurisdiction of any court in respect of the exercise by
him of those powers"5

(B) Those Specified in the Statute

Freedom from arrest of members in civil cases during the

continuance of the session of the House and forty days before its
commencement and forty days after its conclusion"6.

"Immunity to a person from any proceedings civil or criminal, in

any court in respect of the publication in news papers of a
substantially true report of any proceeding of either House of
Parliament unless the publication is proved to have been made with
malice"7.

(C) Privileges Specified in Rules of Procedure

Right of the House to receive immediate information of the

arrest, detention, conviction, imprisonment and release of member
-- when a member is arrested on a criminal charge or for a criminal
offence or is sentenced to imprisonment by a court or is detained
under an executive order, the committing judge, magistrate or
executive authority, as the case may be, shall immediately intimate
such fact to the chairman indicating the reasons for the arrest,
detention or conviction, as the case may be as also the place of
detention or imprisonment of the member in the appropriate form

set out in the Second Schedule"8.

"Exemption of the members from services of legal process and
arrest within the precincts of the House"9.
"Prohibition of the disclosure of the proceedings or decisions of
the secret sittings of the House"10.

(D) Privileges Based upon Precedents

Members or Officers of the House cannot give evidence or

produce documents in courts of law, relating to the proceedings of

the House without the permission of the House"11

Members or Officers of the House cannot attend as a witness
before the other House or a Committee thereof or before a House of
State Legislature or a Committee thereof without the permission of
the House and they cannot be compelled to do so without their
consent"12

Apart from the above privileges both Houses are also enjoying some
consequential powers in order to protect their privileges. They are:

"To commit persons, whether they are member or not, for

breach of privilege or contempt of the House"

"To compel the attendance of witnesses and to send for papers
and records"13.

To regulate its own procedure and the conduct of its business.

The Constitution of India says "each House of Parliament may make
rules for regulating, subject to the provisions of this Constitution, its

procedure and the conduct of its business"14.

To prohibit the publication of its debates and proceedings,
To exclude strangers from the House"15.

Even if the member is under custody he or she enjoys the right to correspond
with the Chairman/Speaker, Secretary-General or Chairman of the Parliamentary
Committee, without any let or hindrance. Withholding any communication
addressed by a member in custody to the Chairman/Speaker, Secretary-General
or the Chairman of a Parliamentary Committee amounts to a breach of privilege.
Parliament is entrusted with important function of law making. Besides this, by
means of resolutions, motions for adjournment, discussions and questions
addressed by members to ministers, the parliament also exercises control over
the administration of the country and safeguard people's liberties. To perform
the task of such a great importance it is necessary that the august House and its
members must be free. Then only unhindered and uninterrupted outcome is
possible.
However looking at the present scenario we are forced to think otherwise. The
situation prevailing is just opposite and its a common man who is confronted
with the problem rather than the legislator. Those powers for which we fought
for centuries and also tried not to codify as codification might limit the sphere
have change their meaning. Our parliamentarians are taking undue advantage
and making mockery of them. Making statements within the privileged precinct
of Parliament have the effect of unjustly injuring the reputation of individual
citizen or the public in general. Unrestricted speeches on the floors of the House
are no doubt valuable, provided it is not misused. Though the presence of
Fundamental Rights and doctrine of Judicial Review the privileges cannot be
claimed so easily even than our legislators enjoy the quantum of the privileged.
Very often these privileges are misused, lowering down the sanctity of the
House. Nation has witnessed so many noisy sessions. Shouting slogans,
mongering and walkout even when the crucial business is under consideration
are not uncommon. Though covering under the shield of Article 19 one can say
that every one in democracy has the right to speak and express his or her
opinion. The answer is of course yes but when they affect others or things go
out of control and nation has to pay for that it is really a matter of thought. It is

quite clear from the parliamentary scene that our so-called representative
friends are very well interested in the muscles strength. They not only express
their humble feelings but the fighting power and the technique how one can
overcome to those who really want to accomplish their task and fulfill the
obligation. And the one who disturbs the floor more as compare to other
emerges winner.
Do we have an alternative for that? On the on-going scenario at least the
common man doest not have any but to have patience and shed their tears
because ultimately it is he who is going to bear the burden for what elected
members are doing be it in Parliament or state legislature. Physical fights,
throwing articles on each other as what happened in UP assembly in October
1997 is a shameful incidence. Snatching papers from the hands of the chair is
not unusual phenomena. March 16, 1998 saw an awful incidence when the
members of the opposition in Orissa legislative Assembly tore the speech of the
governor K.V. Rangunathan Reddy which were distributed to them earlier
because they wanted the Governor to step down and when he paid no heed the
opposition did so to show their anger. The similar stage show was seen in
Andhra Pradesh legislative assembly where the governor was forced to abruptly
end his speech within five minutes of his address because the opposition
members raised towards the podium and started shouting slogans against the
governments inaction in the wake of suicide by the cotton grower in the state.
They even tore the speeches of the governor and flung them into the air, one of
which landed on the shoulder of the governor16.

Not only the states but

supreme legislature i.e. the Parliament is not untouched from such unruly
scenes. E.g. When the bill of reservation quota for women was about to be
presented before the Lok Sabha on July 14, 1998. more worst scene was staged
there. Not only that day but whenever government tries to move the bill always
members behaves objectionably. They used to walkouts, dharnas, reaching to
the well of the House. In a recent happening the BJP led opposition and the
congress led government almost came to blow at Rajya Sabha While Finance
Minister P.Chidambaram was replying to the discussion on the general budget.
Since the opposition wanted to have a discussion on Nandigram issue but
finance minister continued replying to the budget. BJP leader Ahluwalia when fail
to call out Union Minister PR Dasmunshi as he did not pay any heed, Ahluwalia
went to the treasury bench and tried to prevent finance minister from speaking.
Finance minister was seen protesting to Ahluwalia. Seeing this other congress

members including Pachauri and Dasmunshi came to the rescue of the finance
minister while the BJP members rushed to provide support to Ahluwalia17. This
is the scene we frequestly watch, on television. It results in nothing but the
adjournment of the House, some times for few minutes but it could very often
stretch to many days or week. As Tehalka.com case where the House got
adjourned for more than a week. Do we see such scenes in other Parliament in
the world or had any such thing happened during Nehru or Shastris era.
We know that our parliamentary proceedings are the open book, constantly
being watched by the millions of the people not only in the country but the
world over through active media be it a print or electronic. Any lowering in the
quality of its functioning or deviation from the requisite norms become much
more perceptible and pronounced. This not only unable to set the tone for the
sister concern, i.e., state legislatures but also affects the image of the key
institution before the word and what is more that it taxes heavily on the nations
resources.
Paralyzing the parliament by opposition, be it BJP led NDA or Congress led
alliances, our great leaders always forget that each parliamentary minute costs
about Rs 20,000. If we calculate in simple term we find that about 6 hours a day
one House (Lok Sabha or Rajya Sabha) sits to legislate on the business and if we
calculate the money spend for a day, it terns to be around Rs. 72,000,00. If a
day is lost through pandemonium without performing the constructive business
we simply lose lakhs of rupees and if the same drama staged for more than a
day it means the figure shoots up to crores. So who is responsible for those? Our
more sensible representative

just lost their sense on this issue that the money

they are flushing down the drain doest not comes from their pocket but from the
common mans sweat and bloods earning which in the form of taxes is sucked
in.

Being

the

developing

country

this

loss

is

just

unforgettable

and

unacceptable. Unfortunately we have witnessed several such occasions e.g.

Tahelks .com case, where more than a weak is lost, other occasions includes
JMM bribery case, Bofors scandal, Sugar scam, Fodder scam, Housing scam,
where we have wasted hundred and hundreds of hours. The Lok Sabha lost over
60 hours as a result of disruption in 2003.

Where as in 2002, apart from minor

disruption in the House, Speaker Manohar Joshi adjourned the House sine die
three days ahead of the scheduled conclusion of the monsoon session over the
petrol pump allotment issue18.

The weak started on March 19, 2007 ended on March 24, 2007 saw two days of
parliament wasted over the issue of police action in Nandigram village in West
Bengal.
According to a survey the time lost by the House/Houses in the recent past is:

In the 11th Lok Sabha (1996 to 1998) 5.28 % of the total

Parliament time was lost in pandemonium.
The above figure increased to 10.66% in the 12th Lok Sabha.
The figure tern to be more than th double i.e. 22.4 % between 1999
and 2004.
The current 14th Lok Sabha recorded 38 per cent time lost in the
first two sessions,
The Rajya Sabha, reacting similarly to these issues, lost a whopping
46 per cent time in the corresponding 201st and 202nd sessions19.
If we would have utilized our time properly in constructive work then a better job
for the nation could have been done and if I speak in terms of money we can
feed millions of empty stomach or could have rebuilt several Gujarat or
Andaman & Nicobar after being hit by the natural calamity.
Parliament is a supreme forum expected to set the tone and tenor but
unfortunately the standard of Parliament is so degrading that all this has
become a dream only. Today its members do not even hesitate to involve in
bribe, taking money for raising issues on the floor, throwing mikes and articles
on each other with utmost accuracy no matter how important agenda is in hand
to be undertaken or absenteeism from the House or walkout during crucial
matters. Turning any serious debate into a stage show has now become the
irresistible occurrences.
To my mind the powers and privileges of the House and its members exist so as
to maintain the dignity and independence of the House and its members and
enhance their performance. But today the respect for parliament is awfully
lacking. Even with the scant respect to the chair have made the credibility of
Parlaiement suspected in the eyes of the public.
The main reason for this degrading standards are many but some of them
includes:

Money and muscles power. No political party is an exception in

this regard. They fight with their tooth and nail to save their places.
Secondly the judiciary has no say in the proceedings of the

House. But could any one told that for how long should we have
patience to tolerate this vandalism under the cover of privileges or
immunities.
What adds fuel to the fire is our constitution according to which

one cannot be accepted a culprit even if he/she has committed a

crime no matter public knows what the truth is.
Lack of women participation. Though it is a known fact that

women are less aggressive and physically not so strong. Also their
dedication cannot be challenged then why we people are not willing
to provide them their due shares in the legislature.
They are not penalized for the precious time they waste. If they

are made accountable for what they do on the floor and the party
bears the loss as its members are held responsible then the
situation can be averted to a great extent. But we see that every
party tries to shield their member.
It seems that our great friends believe in the short-term objective. They do not
think that the day is not very far when a common man will ask for the loss
incurred both in terms of money and time which they are generously wasting.
References:
1. Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978 came
into force with effect from the 20th June, 1979. Prior to that, clause (3) of
Article 105 provided that "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 from time to time be defined by
Parliament by law, and, until so defined, shall be those of the House of
Commons of the Parliament of the United Kingdom, and of its members and
committees, at the commencement of the Constitution i.e. on the 26th January,
1950".
2. Article 105 (1)

3. Article 105(2)
4. Article122 (1)
5. Article122 (2)
6. Section 135 of the code of civil procedure.
7. Parliamentary Proceedings (Protection of publication)Act 1979, S.53
8. Rules 229 & 230 of the Rules of Procedure and Conduct of Business of the
House.
9. Ibid, 232 & 233.
10. Ibid, 252
11. First Report of Committee of Privileges of Rajya Sabha, presented to the
House on May 1, 1958
12. 6th Report of the Committee of Privileges of Lok Sabha (2nd ), adopted by
Lok Sabha on the December 17, 1958 and 33rd Report of the Committee of
Privileges of Rajya Sabha, adopted by the House on March 30, 1993).
13.
14.

Op.cit, Rule 269 &270.

Article 118 (1)of the Constitution of India.

15. Op.cit, Rule 387.

16.

Parveen Q. Khan, Privileges of the Legislators -- Its Use and Misuse,

Originals Publications, 2002, p.119.

17. Times of India, March 20, 2007
18. Times of India electronic version, August 22, 2002
19. In a report compiled by an NGO, National Social Watch Coalition published
a report titled 'Citizens Report on Governance and Development - 2006.
Bibliography:
(A) Debates:

Legislative Assembly Debates,

Constituent Assembly Debate
Parliamentary Debate
Reports of Committee of Privileges
(B) Books
Adams and Stephen; Selected Documents of English Constitutional History,
Macmillan Co., London, 1961.
Bannerjee D.N.; The Indian Constitution and its Working, Longmans Green
and Co., Calcutta, 1971.
Grime K.T.; Lectures on Parliamentary Practices and Procedure, Fourth Series,
C.W.P.A.; Maharashtra, 1967.
Kaul M.N. and Shakdhar S.L.; Practices and Procedure of Parliament,
Metropolitan Book Co., New Delhi, 1986.
Mallaya N.N.; Indian Parliament, National Book Trust, New Delhi, 1970.
Shakdhar S.L.; Glimpses of the Working of Parliament, Metropolitan Book
Company, New Delhi, 1977.
Silk Paul and Walter Rhodri,; How Parliament Works, Longman Green and Co,
London, 1987.
Wright A. and Smith P.; Parliament: Past and Present, Hutchinson and Co.,
London.
Pylee M.V.; Constitutional Government in India, Asia Publishing House,
Bombay, 1970.
Hollis C.; Parliament and its Supremacy, Holis and Carler, London 1973.
Chatterjee A.P.; Parliamentary Privileges in India, New Age Publishers,
Calcutta, 1971.
Jain D.C.; Parliamentary Privileges under Indian Constitution, Sterling
Publishers, New Delhi, 1975.
Kashyap S.C.; Ten Lok Ssbhas, Shipra Publications, New Delhi. 1993.
Jakhar B.; People, Parliament and Administration, Metropolitan Book Co., New
Delhi, 1982
(C) News papers, Magazines and Journals
Who is who:
Baron: A British nobleman of the lowest rank or nobleman of continental
Europe, ranked differently in various countries.

Earls a member of the British peerage, ranks below a Marquess and above a
Viscount. A British Earl equates in rank to a continental Count.

The author, who got her doctorate from the Aligarh Muslim University, is
currently working as project coordinator at the Institute of Objective Studies.

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