Constitution of India
Parliamentary Privileges (Art. 105 & Art. 194): Scope and Limitations
By:
Vijay Sardana
Advocate, Delhi High Court
Advocate, Delhi High Court
To enable Parliament to discharge functions properly the
Constitution confers on each member of the Houses certain rights and immunities
and 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.
Individual members enjoy privileges because the House cannot perform its
function without unrestricted use of the services of its members and by each
House for the protection of its members and the vindication of its own
authority and dignity.
The term parliamentary privileges are used in Constitutional
writings to denote both these types of rights and immunities. Sir Thomas
Erskine May (British constitutional theorist) has defined the expression Parliamentary privileges as
follows: The sum of the peculiar rights enjoyed by each house collectively is a
constituent part of the High Court of Parliament, and by members of each house
of parliament individually, without which they cannot discharge their
functions, and which exceed those possessed by other bodies or individuals. According
to Mr. May, the distinctive mark of a privilege is its ancillary character a
necessary means to fulfillment of functions.
Constitutional
Provision:
According to Article 105:
Powers, privileges, etc., of the Houses of Parliament 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 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, 1 [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.
According
to Article 194: Powers, privileges, etc., of the Houses 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, 1 [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.
Interpretation
of the Article 105 and Article 194:
It
may be noted that clause (1) of Article 105 is made Subject to the provisions
of this constitution and to the rules and standing orders regulating the
procedures of Parliament. The words regulating the procedures of Parliament
occurring in clause (1) should be read as covering both the provisions of the
Constitution and the rules and standing orders. So, read, freedom of speech in
Parliament becomes subject to the provisions of Constitution relating to the
procedures of Parliament, i.e., subject to the articles relating to procedures
in Part V including Articles 107 and 121.
According to
Article 121. No discussion shall take place
in Parliament with respect to the conduct of any Judge of the Supreme Court or
of a High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the Judge as
hereinafter provided.
Similarly,
According to Article 211. No discussion
shall take place in the Legislature of a State with respect to the conduct of
any Judge of the Supreme Court or of a High Court in the discharge of his
duties.
According to
Article 122. (1) The validity of any
proceedings in Parliament shall not be called in question on the ground of any
alleged irregularity of procedure. (2) 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.
Similarly, in
Article 212. (1) The validity of any
proceedings in the Legislature of a State shall not be called in question on
the ground of any alleged irregularity of procedure. (2) No officer or member
of the Legislature of a State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for
maintaining order, in the Legislature shall be subject to the jurisdiction of
any court in respect of the exercise by him of those powers.
Thus,
for example, freedom of speech in Parliament would not permit a member to
discuss the conduct of any judge of the Supreme Court or of a High Court.
Likewise, the freedom of speech is subject to the rules of procedures of a
House, such as use of unparliamentary language or unparliamentary conduct.
Freedom of
Speech as Parliamentary Privilege:
The
freedom of speech guaranteed under clause (1) is different from that which a
citizen enjoys as a fundamental right under Article 19 (1) (a). the freedom of
speech as a fundamental right does not protect an individual absolutely for
what he says. The right is subject to reasonable restrictions under clause (2)
of Article 19. The term ‘freedom of speech’ as used in this article means that
no member of Parliament shall be liable to any proceedings, civil and criminal,
in any court for the statements made in debates in the Parliament or any
committee thereof. The freedom of speech conferred under this article cannot
therefore be restricted under Article 19 (2).
Clauses
(1) and (2) of Article 105 protect what is said within the house and not what a
member of Parliament may say outside. Accordingly, if a member publishes his
speech outside Parliament, he will be held liable if the speech is defamatory.
Besides, the freedom of speech. To which Article 105 (1) and (2) refer, would
be available to a member of Parliament when he attends the session of
Parliament, no occasion arises for the exercise of the right of freedom of
speech, and no complaint can be made that the said right has been invalidly
invaded.
Article
105, clause (1), expressly safeguards freedom of speech in parliament. It says:
there shall be freedom of speech in parliament. Clause (2) further provides
that 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. No action, civil or criminal, will therefore lie against a
member for defamation or the like in respect of things said in parliament or
its committees. The immunity is not limited to mere spoken words; it extends to
votes, as clause (2) specifically declares, viz. any vote given by him in
parliament or any committee thereof. Though not expressly stated, the freedom
of speech would extend to other acts also done in connection with the
proceedings of each House, such as, for notices of motions, questions, reports
of the committee, or the resolutions.
Clause
(1) confers freedom of speech to the legislators within the legislative
chambers and clause (2) makes it plain that the freedom is literally absolute.
Freedom
from Court interventions:
Article
105 (2) confers immunity, inter alia, in respect of anything said in Parliament
the word anything is of the widest import and is equivalent to everything. The
only limitation arises from the words in Parliament, which means during the
sitting of Parliament and in the course of business of Parliament.
Once
it was proved that Parliament was sitting and its business was transacted,
anything said during the course of that business was immune from proceedings in
any court. This immunity is not only complete but it is as it should be. It is
one of the essence of parliamentary system of government that people's
representative should be free to express themselves without fear of legal
expenses. What they say is only subject to the discipline of the rules of Parliament,
the good sense of the members and the control of proceedings by the speaker.
The courts have no say in the matter and should really have none.
This
Power is restricted to the functioning of the House:
Article
105, so also Article 194 subjects the powers, privileges and immunities of each
House as well as all its members and all its committees not only to the laws
made by the appropriate legislature but also to all other provisions of the
Constitution. Both these articles far from dealing with the legislative powers
of the Houses of Parliament or of State Legislature respectively are confined
in scope to such powers of each House as it may exercise separately functioning
as a House.
A
House of Parliament or Legislature cannot try anyone or any case directly as a
court of justice can, but it can proceed quasi judicially in cases of contempt
of its authority or take up motions concerning its privileges and immunities in
order to seek removal of obstructions to the due performance of its legislative
functions. If any question of jurisdiction arises as to a certain matter, it
has to be decided by a court of law in appropriate proceedings. For example,
the jurisdiction to try a criminal offence such as murder, committed even
within a House vests in ordinary courts and not in a of Parliament or in a
State Legislature. Also, a House of Parliament or State Legislature cannot in
exercise of any supposed powers under Articles 105 and 194 decide election
disputes for which special authorities have been constituted under the
Representation of People Act, 1951 enacted in compliance with Article 329.
Right of Publication of proceedings
Clause
(2) of Article 105 expressly declares that no person shall be liable in respect
of the publication by order under the authority of a house of Parliament, of
any report, paper, votes or proceedings. Common law accords the defence of
qualified privilege to fair and accurate unofficial reports of parliamentary
proceedings, published in a newspaper or elsewhere. In Wason v. Walter ,
Cockburn, C.J. observed that it was of paramount public and national importance
that parliamentary proceedings should be communicated to public, which has the
deepest interest in knowing what passes in Parliament. But a partial report or
a report of detached part of proceedings published with intent to injure
individuals will be disentitled to protection. The same is the law in India.
The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that
no person shall be liable to any proceedings, civil or criminal, in a court in
respect of the publication of a substantially true report of the proceedings in
either House of the Parliament, unless it is proved that the publication is
made with malice.
Freedom
from Arrest:
In
India freedom from arrest has been limited to civil causes and has not been
applied to arrest on criminal charges or contempt of court or to detention
under the Preventive Detention Act . Also there is no privilege if arrest is
made under s.151 Criminal Procedure Code.
It
has been held in K. Anandan Kumar v. Chief Secretary, Government of Madras ,
that matters of Parliament do not enjoy any special status as compared to an
ordinary citizen in respect of valid orders of detention. In criminal cases,
member of parliament can be arrested like an ordinary citizen.
Right
to regulate Internal Proceedings:
As
far as right to regulate internal proceedings are concerned Article 122 ( i.e. Courts
not to inquire into proceedings of Parliament) expressly provides that the
validity of any proceedings shall not be called in question on the ground of
any alleged irregularity of procedure, and no officer or member of Parliament
in whom powers are vested by or under the Constitution for regulating the
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.
Right
to exclude strangers from its proceedings and hold secret sessions:
In
India, the rules of procedure in the House of People give the chair the power,
whenever it thinks fit, of ordering the withdrawal of strangers from any part
of the House and when the House sits in a secret session no stranger is
permitted to be present in the chamber, lobby or galleries. The only exceptions
are the members of the Council of States and the persons authorized by the
Speaker.
In Pandit
M.S.M Sharma v. Shri Krishna Sinha,
proceedings for the breach of privilege had been started against an editor of a
newspaper for publishing those parts of the speech of a member delivered in
Bihar legislative assembly which the speaker had ordered to be expunged from
the proceedings of the Assembly. The editor in a writ petition under A. 32
contended that the House of Commons had no privilege to prohibit either the
publication of the publicly seen and heard proceedings that took place in the
House or of that part of the proceedings which had been directed to be expunged.
The Supreme Court by the majority of four to one rejected the contention of the
petitioner. Das C.J., who delivered the majority judgment, observed that the
House of Commons had at the commencement of our Constitution the power or
privilege of prohibiting the publication of even a true and faithful report of
the debates or proceedings that took place within the House. A fortiori the
House had at the relevant time the power or privilege of prohibiting the
publication of an inaccurate version of such debates or proceedings.
Now
Article 361-A inserted by the 44th Amendment with effect from June 20, 1979
provides that no person shall be liable to any proceedings civil or criminal
for reporting the proceedings of either House of Parliament or a State
Legislature unless the reporting is proved to have been made with malice. This
provision does not apply to the reporting of proceedings of secret sittings of
the Houses.
According to
Article 361A. (1) No person shall be liable
to any proceedings, civil or criminal, in any court in respect of the
publication in a newspaper of a substantially true report of any proceedings of
either House of Parliament or the Legislative Assembly, or, as the case may be,
either House of the Legislature, of a State, unless the publication is proved
to have been made with malice: Provided that nothing in this clause shall apply
to the publication of any report of the proceedings of a secret sitting of
either House of Parliament or the Legislative Assembly, or, as the case may be,
either House of the Legislature, of a State. (2) Clause (1) shall apply in
relation to reports or matters broadcast by means of wireless telegraphy as
part of any programme or service provided by means of a broadcasting station as
it applies in relation to reports or matters published in a newspaper. Explanation.
—In this article, “newspaper” includes a news agency report containing material
for publication in a newspaper.]
Parliamentary Privileges – An Analysis:
Article 105 of the Constitution
defines the powers, privileges and immunities of the Houses of Parliament and
of the members and committees of the two Houses. The more important of the privileges, namely, freedom
of speech in Parliament and immunity of members from any proceedings in any
court of law in respect of anything said or any vote given by them in
Parliament, are specified in this article. In other respects,
powers and privileges of each House, its Committees and its members are, in
effect, identical to the powers and privileges enjoyed by the British House of
Commons as on 26 January 1950.
The basic law is that all citizens including members of
Parliament are equal before the law. The members of Parliament have
the same rights and privileges as ordinary citizens except when they perform their duties in Parliament. The privileges do not exempt the members from their
normal obligations to society.
The founding fathers
envisaged codification of parliamentary privileges by Parliament by
law. But so far no law has been made and these privileges remain
undefined. It is a somewhat curious
situation that even after more than 70 years after the commencement of the
Constitution we are unable to lay down precisely by law when a Member of
Parliament is not subject to the same legal obligations as any ordinary citizen
is. The only idea behind parliamentary privileges is that members
who represent the people are not in any way obstructed in the discharge of
their parliamentary duties and are able to express their views freely and
fearlessly inside the Houses and Committees of Parliament without incurring any
legal action on that account. Privileges
of Members are intended to facilitate them in doing their work to advance the
interests of the people. They
are not meant to be privileges against the people or against the freedom of the
press. The Commission recommends that the time has come to
define and delimit privileges deemed to be necessary for the free and
independent functioning of Parliament. It should not be necessary to
run to the 1950 position in the House of Commons every time a question arises
as to what kind of legal protection or immunity a Member has in relation to his
or her work in the House.
Can Parliamentary Privileges be misused?
Case facts: In a much-publicized
matter involving former Prime Minister, several ministers, Members of
Parliament and others a divided Court, in P.V. Narsimha Rao v. State has held
that the privilege of immunity from courts proceedings in Article 105 (2)
extends even to bribes taken by the Members of Parliament for the purpose of
voting in a particular manner in Parliament. The majority (3 judges) did not
agree with the minority (2 judges) that the words in respect of in Article 105
(2) mean, arising out of and therefore would not cover conduct antecedent to
speech or voting in Parliament. The court was however unanimous that the
members of Parliament who gave bribes, or who took bribes but did not
participate in the voting could not claim immunity from court proceeding's under
Article 105 (2). The decision has invoked so much controversy and
dissatisfaction that a review petition is pending in the court.
According to National Commission to Review the Working of The
Constitution Report, the law of immunity of members under the parliamentary
privilege law was tested in PV Narsimha Rao Vs. State (CBI/SPE), (AIR
1998 SC 2120). The substance of the charge was that certain
members of Parliament had conspired to bribe certain other members to vote
against a no-confidence motion in Parliament. By a majority decision
the Court arrived at the conclusion that while bribe-givers, who were members
of Parliament, could not claim immunity under article 105, the bribe-takers,
also members of Parliament, could claim such immunity if they had actually
spoken or voted in the House in the manner indicated by the
bribe-givers. It is obvious that this interpretation of the immunity
of members of Parliament runs counter to all notions of justice, fair play and
good conduct expected from members of Parliament.
Freedom of speech inside the House cannot be used by them to
solicit or to accept bribes, which is an offence under the criminal law of the
country. The decision of the court in the aforesaid case makes it
necessary to clarify the true intent of the Constitution. To
maintain the dignity, honour and respect of Parliament and its members, it is essential to put it beyond doubt that the
protection against legal action under article 105 does not extend to corrupt
acts.
Who should be the sanctioning
Authority?
A second issue that was raised in this case concerned the
authority competent to sanction prosecution against a member in respect of an
offence involving acceptance of a consideration for speaking or voting in a
particular manner or for not voting in either House of Parliament. A Member of Parliament is not appointed by any
authority. He is elected by his or her constituency or by the
State Assembly and takes his or her seat on taking the oath prescribed by the
Constitution. While functioning as a
Member he or she is subject to the disciplinary control of the presiding
officer in respect of functions within the Parliament or in its
Committees. It would, therefore, stand to reason that sanction for
prosecution should be given by the Speaker or the Chairman, as the case may be.
Report of the National Commission to Review The Working of The
Constitution
The Commission recommends that article
105(2) may be amended to clarify that the immunity enjoyed by Members of
Parliament under parliamentary privileges does not cover corrupt acts committed
by them in connection with their duties in the House or otherwise. Corrupt acts would include
accepting money or any other valuable consideration to speak and/or vote in a
particular manner. For such acts, they would be liable for action
under the ordinary law of the land. It may be further provided that
no court will take cognizance of any offence arising out of a Member's action
in the House without prior sanction of the Speaker or the Chairman, as the case
may be. Article 194(2) may also be similarly amended in relation to the
Members of State Legislatures.
Conclusion
There is a clear demarcation as to what
all rights and privileges are absolute and what are not. For example, in India
Legislative Assemblies and Parliament never discharge any judicial function and
their historical and constitutional background does not support their claim to
be regarded as courts of record in any sense. No immunity from scrutiny by
courts of general warrants issued by House in India can therefore be claimed.
Clause (3)- the first art of this clause
empowers the State Legislature to make laws Prescribing its powers, privileges
and immunities. If the Legislature of a State under the first part of clause
(3) makes a law which prescribes its powers, privileges and immunities, such
law would be subject to Article 13 (Laws inconsistent with or in derogation of
the fundamental rights) and clause (2) of that article would render it void if
it contravenes or abridges any of the fundamental rights guaranteed by Part
III.
Both the Parliament and State
Legislatures have a duty to look carefully before making any law, so that it
doesn't harm other rights. It is also a duty of the members to properly use
these privileges and not misuse them for alternate purposes that is not in the
favour of general interest of nation and public at large. Thus, what we must
keep in mind is the fact that power corrupts and absolute power corrupts
absolutely. For this not to happen under the privileges granted, the public and
the other governing body should always be on constant scrutiny by citizens for
vibrant and accountable democracy.
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