LEGISLATIVE PRIVILEGES

Introduction
Parliamentary privileges are defined in Article 105 of the Indian
Constitution. The members of Parliament are exempted from any
civil or criminal liability for any statement made or act done in
the course of their duties. The privileges are claimed only when
the person is a member of the house. As soon as he ends to be a
member, the privileges are said to be called off. The privileges
given to the members are necessary for exercising constitutional
functions. These privileges are essential so that the proceedings
and functions can be made in a disciplined and undisturbed
manner.
Privileges individually enjoyed by the
members

1. Freedom of speech in parliament

The members of the parliament have been vested
with the freedom of speech and expression. As the
very essence of our parliamentary democracy is a
free and fearless discussion, anything said by them
expressing their views and thoughts are exempted
from any liability and cannot be tried in the court of
law.
 Sir John Eliot’s Case- The House of Lords recognised that the
court should never have assumed jurisdiction over the charge of
seditious speeches, which was “fully answered by the plea of
privilege” and reversed the decision of Court of King’s bench in
which they have convicted Sir John for delivering a seditious
speech in House of Common.

 The freedom of speech and expression guaranteed to a citizen

under Article 19(2) is different from the freedom of speech
and expression provided to a member of the parliament. It has
been guaranteed under Article 105(1) of the Indian
constitution. But the freedom is subject to rules and orders which
regulates the proceedings of the parliament.

 This right is given even to non-members who have a right to

speak in the house. Example, attorney general of India. So that,
there is fearless participation of the members in the debate
and every member can put forward his thought without any
fear or favour.
 Some limitations are also present which should
be followed in order to claim immunity

 Freedom of speech should be in accordance with the constitutional provisions

and subject to rules and procedures of the parliament, stated under Article
118 of the Constitution.
 Under Article 121 of the Constitution, the members of the parliament are
restricted from discussing the conduct of the judges of the Supreme Court
and the High Court. But, even if this happens, it is the matter of the
parliament and the court cannot interfere.
 No privilege and immunity can be claimed by the member for anything
which is said outside the proceedings of the house.
 Freedom from arrest
 The members enjoy freedom from arrest in any civil case 40 days before
and after the adjournment of the house and also when the house is in
session. No member can be arrested from the limits of the parliament
without the permission of the house to which he/she belongs so that there is
no hindrance in performing their duties.
 If the detention of any members of the parliament is made, the
chairman or the speaker should be informed by the concerned
authority, the reason for the arrest. But, a member can be
arrested outside the limits of the house on criminal charges
against him under The Preventive Detention act, The Essential
Services Maintenance Act (ESMA), The National Security Act
(NSA) or any such act.
 Freedom from appearing as a witness
 The members of the parliament enjoy special privileges and
are exempted from attending court as a witness. They are
given complete liberty to attend the house and perform their
duties without any interference from the court.
Privileges enjoyed by the members
collectively as part of parliament
1. Right to prohibit the publication of proceedings

 As stated in Article 105(2) of the Constitution, no person shall be

held liable for publishing any reports, discussions etc. of the house
under the authority of the member of the house. For paramount and
national importance, it is essential that the proceedings should be
communicated to the public to aware them about what is going on in
the parliament.
 But, any partial report of detached part of proceedings or any
publication made with malice intention is disentitled for the
protection. Protection is only granted if it reflects the true
proceedings of the house. If any expunged proceedings are
published or any misrepresentation or misreporting is found, it is
held to be the breach of the privilege and contempt of the house.
2. Right to exclude strangers
 The members of the house have the power and right to
exclude strangers who are not members of the house from
the proceedings. This right is very essential for securing
free and fair discussion in the house. If any breach is
reported then the punishment in the form of admonition,
reprimand, or imprisonment can be given.
3. The right to punish members and outsiders for breach of its
privileges

 The Indian Parliament has the power to punish any person

whether strangers or any member of the house for any
breach or contempt of the house. When any breach is
committed by the member of the house, he/she is expelled
from the house.
 This right has been defined as ‘keystone of parliamentary
privilege’ because, without this power, the house can suffer
contempt and breach and is very necessary to safeguard its
authority and discharge its functions. This power has also
been upheld by the judiciary in most of the cases. The house
can put in custody any person or member for contempt till the
period the house is in session.
4. The right to regulate the internal affairs of the house

 Each house has a right to regulate its proceedings in the

way it deems fit and proper. Each house has its own
jurisdiction over the house and no authority from the
other house can interfere in regulation of its internal
proceedings. Under Article 118 of the Constitution, the
house have been empowered to conduct its regulation
for proceedings and cannot be challenged in the court
of law on the ground that the house is not in accordance
with the rules made under Article 118. The Supreme
Court has also held that this is general provision and the
rule is not binding upon the house. They can deviate or
change the rule anytime accordingly.
Punishments prescribed for breach of
privileges or contempt of the house
 Imprisonment – If the breach committed is of a grave nature the,
punishment can be given in the form of the imprisonment of any
member or person.
 Imposing fine – If in the view of the parliament, the breach or
contempt committed is of economic offence and any pecuniary gain
has been made from the breach then, the parliament can impose fine
on the person.
 Prosecuting the offenders – The parliament can also prosecute the
one committing the breach.
 Punishment given to its own members – If any contempt is committed
by the members of the parliament then, he is to be punished by the
house itself which could also result in the suspension of the member
from the house.
What constitutes parliamentary breach or contempt
of the house?

There is no codification to clearly state that what

action constitutes a breach and what punishment it
entails. Although, there are various acts which are
treated by the house as the contempt. It is generally
based on the actions which tend to obstruct the
proceedings of the house and creates a disturbance
for the members. Some of them are briefly
discussed.
1. Giving any misleading statement in the house

The acts which are done solely with the purpose to mislead
are considered as the contempt of the house. If the statement
is made by a person who believes the information to be true
then, there is no breach involved. It has to be proved that the
statement was made with an intention to mislead the house.

2. Disturbance by the outsiders

Any disruption created by shouting slogans or throwing

leaflets etc. with the purpose of disturbing the proceedings
of the court is regarded as a major contempt by the house.
The person is imprisoned by the house for a specified period
of time or a warning is given depending on the seriousness
of the case.
3. Any kind of assault on the members
Here, the privilege is available when the member is
performing his duties. An assault done by any person on the
member of the parliament in the course of performing his
duties is treated as contempt of the house.

4. Writings or speeches about the character of the member

Any speech published or libel made against the character of

the member is regarded as the contempt of the house. These
are regarded to be necessary because it affects the
performance and function of the member by reducing the
respect for him.So, clearly, any attack on the privilege of the
members by any means is considered as a breach of the
privilege and the parliament can take action regarding the
same.
 Freedom of press and the parliamentary
privileges

The parliamentary privileges restrict the freedom of the

press, which is a fundamental right. Caution to a great extent
has to be taken by the press while publishing any report of
the proceedings of the parliament or the conduct of any
member. There are instances where the press can be held
liable for the contempt of the house
 Publishing any matter concerning the character of any
member of the parliament
 Any pre-mature publication of the proceedings
 Misreporting or misrepresenting the proceeding of the house
 Publishing the expunged portion of the proceedings
 In spite of the fact that the freedom of the press is
subject to the parliamentary privileges, certain
enactments have been made for the protection of the
freedom of the press. If the fundamental right is being
violated, there is no meaning of democracy. The
freedom of the press has to be protected because we
need to be informed about the acts of our
representatives. Parliamentary Proceedings (protection
of the publication) Act, 1977 protects the rights of the
press under certain given circumstances

 The reports of the proceedings are substantially true.

 The report is made without malice.
 The report is made for public good.
 The report should not constitute any secret meeting of
the house.
Codification of the parliamentary privileges

 Our Indian parliament enjoys supreme powers as being a member of the

parliament. There is also misuse of the privileges given to them because they
do not have many restriction on the rights. They have the power to be the
judge of their own proceedings, regulate their proceedings, what constitutes
the breach and what punishment should be given for the breach, are solely
decided by them.
 The power vested in them is too wide as compared to the fundamental rights
vested in the citizens. With no codification of the privileges, they have
gained an undefined power because there is no expressed provision to state
the limitations on their powers. The privilege from any civil arrest 40 days
before and after the session and during the session results that they are
exempted from arrest for even more than 365 days. No comprehensive law
has been till date enacted by the parliament for the codification of the
parliamentary privileges.
 It is mostly resisted by the members because then it will be
subject to the fundamental rights and would be in the
purview of judicial review. Justice M.N. Venkatachaliah
heading the Constitution Review Commission also
recommended to define and delimit the privileges for the
free and independent functioning of the legislature. This is
based on the apprehension that codification will involve
interference of the court as the matters would be presented
in the court of law. Non-codification of privileges has led to
greater powers being enjoyed by the members. But, now the
time has come to codify and define the privileges and
actions must be taken so that there is smooth functioning of
the parliament without any conflict.
Judicial review of the
parliamentary privileges
 The Indian judiciary has been vested with the responsibility of the
protection of the fundamental rights. Parliament members claim
absolute sovereignty over their powers and in any case does not
want the judiciary to interfere. But, the judiciary is regarded as the
guardian of our Constitution and it cannot sit quietly if any
fundamental right of a citizen is violated due to privileges or when
there is an escape from any criminal liability.
 The judiciary has to take a stand on the wrongs committed by the
members who are taking the shelter of the privileges. The Supreme
Court in Keshav Singh’s case observed that the privileges conferred
on the members are subject to the fundamental rights.
 The Supreme Court has also held that any conflict arising between
the privileges and the fundamental rights would be resolved by
adopting harmonious construction. The judiciary is very well aware of
the fact that it does not have jurisdiction over parliamentary matters
but it is necessary for the society that any violation should be
resolved by the court as it deems fit.
Parliamentary privileges and the
principle of natural justice
In a recent judgment by the Supreme Court judges in the case
of Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly, it was
held that the principle of the natural justice cannot be violated by the
privilege committee.

 Facts of the case

On 19-02-2015, some members of the Tamil Nadu Legislative
Assembly was suspended on the ground of unruly conduct. In
furtherance of this, a privilege committee was formed to inquire
about the conduct of the members and further proceedings related
to breach of privilege. It was found and recommended by the take
necessary action against six members for the breach of privilege.
By a resolution dated 31-03-2015, the members were suspended
for a period of ten days for the next session. Further it was extended
to cutting of their salaries and giving any other benefit till the
suspension period. A writ petition was filed by the members in the
Supreme Court under Article 32 of the Constitution.
 Contentions raised by the members
The contention was raised by the petitioners that their
fundamental rights under Article 19(1)(a), 19(1)(g), 14
and 21 of the Constitution have been violated by the
said resolution.

 Judgment by the court

The court rejected the contention of the petitioners that
the resolution violated Article 19(1)(a) and 19(1)(g). It
further accepted the contention that the rights was
violated under Article 14 of the Constitution. The court
observed that the video recording which showed the act
of the members amounting to the breach was not
presented before the petitioners. If it would have been
presented then they might had the chance to explain
their conduct. It was further directed by the court to
restore the salary and other benefits of the petitioner.
Conclusion

The privileges are conferred on the members for smooth

functioning of the parliament. But, these rights should always
be in conformity with the fundamental right because they are
our representatives and work for our welfare. If the
privileges are not in accordance with the fundamental rights
then the very essence of democracy for the protection of the
rights of the citizen will be lost. It is the duty of the
parliament not to violate any other rights which are
guaranteed by the constitution. The members should also use
their privileges wisely and not misuse them. They should
always keep in mind that the powers do not make them
corrupt. The parliament cannot adopt every privilege that is
present in the house of commons but should adopt only those
privileges which accordingly suits our Indian democracy.