Parliamentary Privilege

The most universally used and accepted definition of parliamentary privilege has been defined by
Sir Thomas Erskine May, as: “the sum of the peculiar rights enjoyed by each House collectively as
a constituent part of the High Court of 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”.1 Black's Law Dictionary has defined privilege as, “a special legal right,
exemption or immunity granted to a person or a class of persons, an exception to a duty”. Without
these privileges, the Houses can neither maintain their authority, dignity and honour nor can protect
their members from any obstruction in the discharge of their parliamentary responsibilities.2
Parliamentary privilege, though not part of the law of the land, is to a certain extent an exemption
from the ordinary law.3 We have incorporated many practices and precedents of the British
Constitutional System and the impact of the Mother of Parliaments (British Parliament) is more
manifest pertaining to Parliamentary Privileges.
Parliamentary Privileges Article 105 of Constitution of India states;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 proceeding 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
Electronic copy available at: http://ssrn.com/abstract=2042558 2 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 the
members and the committee 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 (44th
Amendment) Act, 1978].
4. The provision 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 the members of Parliament.
This article defines parliamentary privileges of both Houses of Parliament and of their members
and committees. Article 194, which is an exact reproduction of Article 105, deals with the State
Legislatures and their members and committees. To enable Parliament to discharge functions
properly the Constitution confers on each member of the Houses certain rights and immunities
and also certain rights and immunities and powers on each house collectively. Parliamentary
privilege is an essential incident to the high and multifarious functions which the legislature is
called upon to perform.

Why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subject
to the sovereignty and integrity of the nation, public order, friendly relations with foreign states,
incitement of an offence or defamation as mentioned in Article 19(2)? The ‘sovereign people of
India’ have a restricted right to free speech but ‘their servants or representatives’ have an absolute
freedom of speech in the Houses. Even if one may reluctantly concede such a privilege to them in
the interest of the smooth conduct of the House, why should there be the power to send people to
jail for the breach of privileges? The Supreme Court’s decision in M.S.M. Sharma (1958), giving
primacy to the privileges over free speech, was made in the first decade of the Republic during
which the court had a lot of respect for legislators — most of them were freedom fighters. However,
by 1967, the Supreme Court was convinced that Parliament should not have absolute powers.

Too wide a power:

Our legislators have the power to be the sole judges to decide what their privileges are, what
constitutes their breach, and what punishment is to be awarded in case of breach. Is this not too
wide a power which clearly impinges on constitutionalism, i.e. the idea of limited powers? The fault
lies with the framers of the Constitution, who, while drafting the lengthiest constitution of the
world, have left the vital area of legislative privileges undefined.

Articles 105 and 194 clearly lay down that the “power, privileges and immunities of the legislature
shall be as may from time to time be defined by the legislature, and until so defined, shall be those
of the House of Commons”. The expression “until so defined” does not mean an absolute power not
to define privileges at all. Legislators have been arguing that codification of privileges will harm the
sovereignty of Parliament. Is Indian Parliament really sovereign? We want a uniform civil code but
our parliamentarians do not want a codification of their privileges which will not require more than
a couple of articles.

Moreover, the drafters of the Constitution also committed the mistake of putting Indian Parliament
on a par with the British House of Commons. De Lolme’s statement about the supremacy of British
Parliament, that “Parliament can do everything but make a man a woman and a woman a man”, is
not applicable to India. British Parliament was also the highest court till 2009. Thus, Indian
legislatures and British Parliament differ not merely as regards their general political status but also
in the matter of legal powers. Unlike England, in India the Constitution is supreme, not Parliament.
Today by sovereignty, we mean “popular sovereignty” and not “parliamentary sovereignty”. The
opening words of the Constitution are “we the people” and not “we the legislators of India.”

A comparison:
The codification of privileges is basically resisted because it would make the privileges subject to
fundamental rights and hence to judicial scrutiny and evolution of new privileges would not be
possible. In fact, the British House has itself broken from the past. Acts and utterances defamatory
of Parliament or its members are no more treated as privilege questions. The U.S. House of
Representatives has been working smoothly without any penal powers for well over two centuries.
Australia too codified privileges in 1987.
It is strange that our legislators, to cover up corruption, not only took cover behind privileges but
also pleaded in courts that they were not even ‘public servants’. In the Hardwari Lal and A.R.
Antulay cases, the court did accept their contention and held that MLAs are not ‘public servants’. In
the P.V. Narasimha Rao case, though they were held as public servants, the Supreme Court, in a
controversial judgment, held that they can legally take bribes and vote as per the desire of the bribe-
giver and hey will not be liable for corruption because, under legislative privileges, they cannot be
questioned “in respect of any vote” given by them.
Our legislators also have protection from arrest in civil cases 40 days before the session, during the
session and 40 days after the session. The exemption from arrest is also available for meetings. If
we count the days of three parliamentary sessions and meetings then our MPs have protection from
arrest for more than 365 days in a year. Is it not absurd?

Fundamental Rights:
The Founding Fathers included those Fundamental Rights that have adhered to the American
concept of 'limited government.' The Doctrine of Fundamental Rights, implying that government
exists for the sake of an individual whose freedom and happiness are considerations of paramount
importance seem to be firmly laid in our constitution. These rights are fundamental in the sense that
they have been incorporated in the fundamental law of the land- a law which can be changed
according to a special procedure contained in the constitution itself. They are fundamental because
every citizen is in a position to claim these rights and because they are binding on every authority
that has either the power to make laws or the power to have discretion vested in it. The Supreme
Court has been invested with special jurisdiction and responsibility in the matters of enforcement of
Fundamental Rights. The Constitution has assigned the Judiciary twin task of constructing the
provision of the Constitution and of safeguarding the Fundamental Rights of the citizens. The
privileges and immunities of Parliament and of its members constitute an important part of their
inherent rights under the Constitution and are designed to enable them to discharge their functions
as representatives of the people. They are however meant for that purpose and nothing more.

The approach adopted by the Indian Judiciary and the Indian Legislature in the cases where there is
a conflict between free speech as parliamentary privilege, i.e. Article 105 and freedom of speech
and expression as a fundamental right, i.e. Article 19(1) (a) is worthy of criticism. It can be traced
through a series of cases that have been discussed above in the paper that Parliamentary Privileges
are considered more important to that of Fundamental Rights. Parliamentary Privileges seek to
impose additional limitations on the exercise of the right to freedom of speech and expression just
to protect the interest of the Parliamentarians. In cases such as Blitz Case, not only the fundamental
right under Article 19(1) (a) has been infringed but also the fundamental right under Article 22 has
been infringed. Fundamental Rights already contain limitations under part III of the Constitution of
India, then why there are additional limitations being placed on the Fundamental Rights that are the
most basic human rights for the sake of legislators? In the Search Light Case, the right to freedom
of speech and expression is being curtailed for criticism on the CM. The legislators, who are the
law-makers and the peoples’ representatives should accept criticism that comes from the people
who have made them the representative and the holder of the Parliamentary Privilege. Moreover,
what is the need for taking away the most fundamental of rights in the exercise of Parliamentary
Privilege? Why is it being practised at the cost of a Fundamental Right? The Parliamentary
Privileges could also be exercised by not infringing the Fundamental Rights of the citizens. The
answer to such questions is the overall codification of the Parliamentary Privileges. Parliamentary
Privileges that were adopted from the House of Commons of the United Kingdom were only a
temporary adoption till the time of codification which was decided on by the legislators due to
paucity of time. But, apparently the Codification of Parliamentary Privileges seems to be according
to the whims and fancies of the legislators. The codification of privileges is basically resisted
because it would make the privileges subject to fundamental rights and hence to judicial scrutiny
and evolution of new privileges would not be possible. Further, in cases such as P.V. Narasimha Rao
v. State, where the immunity was provided to the conspirators of bribery. Bribery is a codified
offence under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. Providing
immunity to the conspirators of bribery is detrimental to the healthy functioning of a democratic
nation and is against the principle of constitutionalism. It envisages checks and balances and putting
the powers of the legislators and the executives under some restraint and not making them
uncontrolled and arbitrary. Even one of the ideas of the rule of law is violated, i.e.absence of
arbitrary power. Covering an offence such as bribery under the veil of Parliamentary Privilege
reflects the arbitrariness of the legislators. Therefore, is against constitutionalism and the rule of
law. In one of the latest cases, Markandey Katju v. Lok Sabha, it can be seen that the approach of
the judiciary has not changed over the years. Parliamentary Privileges still are more fundamental
than fundamental rights. After all, parliaments and their members and committees are neither
infallible nor embodiments of all wisdom. Being the representatives of the people they must always
be prepared to face public criticism and should never consider themselves to be above such
criticism. It is difficult to see how legislators can demand a kind of immunity which even the
highest branch of the Indian judiciary does not enjoy.
In our parliamentary democracy, where Parliament enjoys almost
supreme powers, legislators face no threat from government. In
fact privileges have become a tool in the hands of the ruling party.
The case of the Karnataka Assembly imposing fines and
imprisonment on two journalists for writing something against the
Speaker when he was a legislator and against another legislator
has once again revived the debate about the need for codifying
privileges and giving primacy to a citizen’s right to free speech
over legislative privileges.The Constitution Review Commission
headed by Justice M.N. Venkatachaliah had recommended that
privileges should be defined and delimited for the free and
independent functioning of the legislatures.
The restrictive interpretation of the Supreme Court holding
freedom of speech subject to legislative privileges is not in tune
with modern notions of human rights and there is an urgent need
to have a fresh look at the vexed question of freedom of press vis-
à-vis legislative privileges.

(US courts are spoken about and can be elaborated more if you
want since FR is taken from there… il share the research paper)