Monday, April 19, 2010

What are the Parliamentary Privileges? Write briefly on the articles of the Constitution dealing with Parliamentary Privileges.

To enable Parliament to discharge functions properly the Constitution confers on each house and each member of the Houses certain, immunities and powers. These peculiar rights are called Parliamentary privileges.

Article105 deals with the 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 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.

Note: Article 194, an exact reproduction of Article 105, deals with the State Legislatures and their members and committees.

The freedom is thus is very much absolute but still not absolute and is subject to the following condition:

    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.
    Freedom of speech is subject to the discipline of the rules of Parliament as mentioned in Part V including Articles 107 and 121, the good sense of the members and the control of proceedings by the speaker.
    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 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.
    Again this does not apply to what a Member of Parliament says outside. For example, if a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory. So, the freedom of speech under Article 105 (1) and (2) would be available to a Member of Parliament when he attends the session of Parliament

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 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). A review petition is pending in the court regarding this judgment.

Right of Publication of proceedings:

Article 105 (2): No person shall be liable to any proceedings in any court in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings.
Again common law accords the defence of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere. 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.

Other privileges:

Clause (3) of Article 105, as amended declares that the privileges shall be such as determined by Parliament from time to time and until that it shall be such as on 20th June 1979 i.e., on the date of commencement of Section 15 of the 44th Amendment. Before the amendment the privileges of each House and its members were such as those of the House of Commons in England at the time of commencement of the Constitution.

There is freedom from arrest limited to civil causes and doesn’t apply to arrest on criminal charges or to detention under the Preventive Detention Act or 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.

The chair enjoys the power 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

If any question arises as to the disqualification of a member of any house of parliament, Article 103 states that the question shall be referred to the President whose decision shall be final. The President is however required to act according to the opinion of Election Commission.

Right to regulate internal proceedings: Article 122 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.

A House of Parliament or Legislature can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities for smooth conduct of its legislative functions but it cannot try anyone or any case directly as a court of justice can. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law.
A house of Parliament or State Legislature cannot decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329.
In Pandit M.S.M Sharma v. Shri Krishna Sinha case the Court held that in case of conflict between fundamental rights under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. It was explained not to mean that in all cases the privileges shall override the fundamental rights.
There is provision for a committee of privileges. Any matter of breach of privilege or contempt is referred to this committee. The committee has power to summon members or strangers before it. The committee's recommendations are reported to the House which discusses them and gives its own decision.

Article 194 talks about the powers, privileges, etc., of the Houses of Legislature and of the members and committees thereof.
Clause (1): There shall be freedom of speech in the legislature of every State subject to the provisions of Articles 208 and 211. A member cannot accordingly raise discussions as to the conduct of a Supreme Court or a High Court judge. The freedom of speech has been conferred on the legislators are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature.
Clause (2): The freedom of speech under clause (1) is intended to be absolute and unfettered. Similar freedom is guaranteed in respect of the votes in the Legislature or committees.
If a legislator violates freedom of speech as per A. 211 or any fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be liable for any action in any court; he would not be answerable for that in any court. He may be answerable to the House for such a speech and the Supreme Court may take appropriate action against him in respect of it.

Clause (3): Empowers the State Legislature to make laws prescribing its powers, privileges and immunities. Such law, subject to Article 13 and clause (2) of that article would render it void if it contravenes or abridges any of the fundamental rights guaranteed by Part III.

The right of State Legislatures to punish for contempt can be discussed in the light of passing of an order by an unprecedented Full Bench of 28 judges staying the implementation of the U.P. Assembly resolution ordering two judges of Allahabad High Court to be brought in custody before the Bar of the House to explain why they should not be punished for the contempt of the House.
The two judges had admitted the habeas corpus petition of and granted bail to one Keshav Singh who was undergoing imprisonment in pursuance of the Assembly Resolution declaring him guilty of the breach of privilege.
The resolution of the Assembly and the stay order issued by the Full Bench resulted in a constitutional stalemate. Consequently, the president referred the matter under to the Supreme Court for its opinion. The Supreme Court by a majority of 6:1 held that in India notwithstanding a general warrant issued by the Assembly, the Courts could examine the legality of the committal in proper proceedings.
The SC further stated that Article 226 empowers the High Court to issue a writ of habeas corpus against any authority.

Legislative Assemblies and Parliament never discharge any judicial function and there is no immunity from scrutiny by courts of general warrants issued by the House. Parliament and State Legislatures are duty bound to look carefully before making any law, so that it doesn't harm other rights. At the same time the members have to properly use these privileges and not misuse them. The fact that power corrupts and absolute power corrupts absolutely necessitates that the public and the other governing body should always be on vigil.

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