Article submitted by LAKSHAY MEHTA, IDEAL INSTITUTE OF MANAGEMNT AND TECHNOLOGY, SCHOOL OF LAW, DELHI.
Introduction
India basically is called world’s largest democratic country; this is because of the powers to make the law exist with the Indian Parliament. The parliament consist of two houses Rajya Sabha and Lok Sabha. The members of the Lower House (Lok Sabha) of the Parliament are elected by direct election, i.e. we people elect our leaders, while the members of the Upper House (Rajya Sabha) are elected from the Legislative Assembly of States and Union Territories by means of Single Transferable vote through the Proportional Representation. So basically, privileges are provided to both houses of parliament for effective and efficient performance and to discharge its functions with none quite obstruction or the interference. The privileges are provided to every house collectively and to its members independently.
Definition
The main question is what do we understand by Parliamentary Privileges? As the great A. V Dicey says” it is harder to define the extent of the powers or rights possessed by the either Houses of Parliament”. Some Definition are as follows:
“Parliamentary Privileges are basically special rights, immunities, the exceptions which are enjoyed by the members of the two houses of parliament and their committee’s”
Why are Parliamentary Privileges required?
• To secure independence and effectiveness of the parliamentarian’s actions.
• Those Privileges are also extended to those persons who are entitled to speak and take part in the proceeding of a house of parliament or any of the committees; attorney general of India & Union Ministers.
• President is integral part of Parliament. But President can’t enjoy the parliament privileges. Constitution says, President of India does not have parliamentary privileges.
Advent of Parliamentary Privileges
According to the Indian Constitution the powers, privileges, and the immunities of the parliament and the MPs are to be defined by the Parliament itself. The concept of the Parliamentary Privileges in the Constitution of India has been taken from the British Constitution. The main purpose of the parliamentary privileges is to uphold the supremacy of the office of the parliament and its members.
Types Of Parliamentary Privileges
Collective Privileges: It is basically enjoyed by each house of the parliament collectively.
Individual Privileges: It is basically enjoyed by the members individually MP’s.
Collective Privileges
• The parliament has the rights to publish its reports, debates, and proceedings, and also the right to prohibit the same.
• It can exclude strangers from its proceedings & hold the secret settings to discuss some important rules.
• It can make rules to regulate its own procedures & conduct of its business and to adjudicate upon such matters.
• It can punish members and outsiders for the breach of privileges or their contempt.
• The courts are prohibited to inquire into proceedings of a house or its committees.
Individual Privileges
• They cannot be arrested during the session of the parliament and 40 days before the beginning and 40 days after the end of the parliamentary session.
• The members of the parliament have been vested with the freedom of speech, expression as the very essence of the democracy is free and fearless discussion.
• No member is susceptible to any proceedings in any court in respect of anything said or any vote given by him within the parliament or its committees
Statutory Provisions
Apart from the privilege’s specified in the constitution, the Code Of Civil Procedure 1908(Section 135A): provides for freedom of arrest and detention of the members under the civil process during the continuance of the House or Committee thereof and forty days before its commencement and forty days after its conclusion. Privileges are guaranteed based on Rules of Procedure and Precedents: The Chairman has a right to receive immediate information on the arrest, detention, conviction, imprisonment, and release of a member on criminal charge or for criminal offense. So basically the Members or the Officers that cannot be compelled to give evidence or produce documents in court of law, relating to the proceedings of the House without the permission of the house. Also, the Members or the Officers of the House cannot be compelled to attend as a witness before the other House or State Legislature or a committee thereof without the permission of the House and without the consent of the member whose attendance is required.
Power of the House for the Breach of the privilege or the Contempt
The house has power to punish for the breach of privilege or contempt, it is described as the keystone of the parliamentary privileges and is considered necessary to discharge its functions and safeguard its authority and their privileges.
Breach of Privilege - Powers of the House:
If any individual or the authority violates or disregards any of the privileges, powers and the immunities of the House or the members, the committees may punish for the breach of the privileges or contempt. So the House has the power to decide /determine what constitute breach of privilege and contempt. The penal Jurisdiction of house is not confined to its own Members nor to offences committed in its immediate presence, but extends to all or any members for contempt’s of the House, whether committed by members or any persons who aren’t Members, regardless whether the offence is committed within the House or beyond its walls. If a Person founds guilty of the breach of privilege or contempt of the house may be punished either by imprisonment or by admonition (warning) or the reprimand. Two others punishment may also be awarded to its members for the contempt namely suspension and expulsion from house.
Main Privilege’s of the Parliament :
· Freedom of the Speech in the Parliament (Article 105(1) of the Constitution).
· Immunity to a member from any proceedings in any court in the respect of the things said or any vote given by him in the Parliament or the Committee thereof (Article 105(2) of the Constitution).
· Prohibition of the arrest and service of the legal process without the precincts of the House without obtaining the permission of the Chairman/Speaker .
· Prohibition of the disclosure of the procedure or the decision’s of a secret settings of the group.
Case Laws
1. Raja Ram Pal v/s Hon’ble Speaker Lok Sabha and Other[i]
This case is based on the law of the expulsion. A sting operation was conducted by the TV Channel in which it was been shown that the 11 members of Parliament i.e 10 members of Lok Sabha and 1 member of the Rajya Sabha is taking money from the mediator to ask question from Speaker . After this incident both the houses of the Parliament formed a committee and passes a resolution to dismiss 11 member under the Article 105 which gives power to Parliament to dismiss its members. The 11 members filed an appeal in the Supreme Court against decision made by the Parliament. The Supreme Court pronounced the judgement on basis of ‘Exclusive Cognisance’ and also mentioned that it is not written in Article 105 nor in the Article 102 which gives power to expel its members, so even though members performed an unlawful act, therefore Parliament cannot expel the members.
2. Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly[ii]
This case is basically based on the law of natural justice. In this case the members of the Tamil Nadu Legislative Assembly were showing the unruly conduct while session was still in the session. When the speaker ask to remove the first petitioner on ground of the unruly conduct, the other members of the party tried to hit the speaker. Therefore an order was passed suspending 19 members belonging to DMDK party for the rest of the session. Out of the 19 members: 6 members including Mr Alguparaj were been suspended for the remaining session and 10 days for the next session without any salary and other benefits during period of the suspension. The 6 members of DMDK party moved to the Supreme Court stating that the denial of their service and their suspension, would result in violation of the Article 19, Article(19)(1)(a), Article(19)(1)(g) . They also argued that the denial of the access of the evidence on which the suspension was relayed, violates the principle of the natural justice. The Supreme Court held that the Freedom of Speech is not the absolute one and curtailment of the speech due to suspension from the legislature falls within the ambit of the Reasonable Restriction. With respect to the Freedom of Occupation, Court held that only those activity falls under the occupation which generates the economic benefit, which is not certainly in this case.
3. Sita Soren v. Union of India[iii]
This case is about the immunities under the Parliamentary Privilege’s provided to its members of both the houses of the Parliament. Sita Soren, a member of the Jharkhand Mukti Morcha was accused of accepting a bribe to vote for a particular candidate in the Rajya Sabha Elections of 2012.The Central Bureau of Investigation, subsequently filed an official charge sheet against Sita Soren for allegedly accepting a bribe for a vote and a case was filed in the High Court of Jharkhand. In 2014, The Jharkhand High Court dismissed the plea filed by Sita Soren seeking to quash the criminal proceedings that had been initiated against her, claiming that she enjoyed immunity under Article 194(2) of the Constitution i.e. no member of the legislature of the state shall be liable to the proceedings of the courts or for given vote. The case has subsequently been before the Supreme Court. Three judge Bench of the Supreme Court on March 7th, 2019, took note of the decision of the Constitution Bench in P V Narsimha Rao v. State (1998), where the Court in a 3:2 majority had held that parliamentarians enjoy immunity under the Constitution against criminal prosecution with regards to their speech and votes in the House and referred the matter to the consideration by the higher bench.
Conclusion
The privileges basically are conferred to the members for the smooth functioning of the parliament, without the privileges the parliament can’t survive. If the privileges aren't 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 to make sure that the other rights that are guaranteed by the constitution are not been violate. They should always confine in the mind that the powers don't make them corrupt. The privileges guaranteed to the members of the parliament should be limited and it should not be a scope for bribery and to misuse of power.
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