INDIAN PARLIAMENTARY PRIVILEGES

Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for certain actions done or statements made in the course of their legislative duties. It is common in countries whose constitutions are based on the Westminster system.

ORIGIN

In the United Kingdom, it allows members of the House of Lords and House of Commons to speak freely during ordinary parliamentary proceedings without fear of legal action on the grounds of slander, contempt of court or breaching the Official Secrets Act.^[1][2] It also means that members of Parliament cannot be arrested on civil matters for statements made or acts undertaken as an MP within the grounds of the Palace of Westminster, on the condition that such statements or acts occur as part of a proceeding in Parliament—for example, as a question^[3] to the Prime Minister in the House of Commons. This allows Members to raise questions or debate issues which could slander an individual, interfere with an ongoing court case or threaten to reveal state secrets.

There is no immunity from arrest on criminal grounds, nor does the civil privilege entirely extend to the devolved administrations in Scotland or Wales.^[4] A consequence of the privilege of free speech is that legislators in Westminster systems are forbidden by conventions of their House from uttering certain words, or implying that another member is lying.^[5]

Similar rights apply in other Westminster system countries such as Canada and Australia. In the United States, the Speech or Debate Clause in Article One of the United States Constitution provides for a similar privilege, and many state constitutions provide similar clauses for their state legislatures.

IN INDIA

The government of India based largely on the Westminster model, grants limited immunity from legal proceedings to members of Parliament and State Legislature under Articles 105 and 194 respectively, of the Indian Constitution. Article 105(2) reads as follows:

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.^[6]

These privileges exempt the legislator from civil liability but not from 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/she ceases to be a member of the parliament, the privileges become null and void.

• Parliament has not made any special lawto exhaustively codify all the privileges. They are rather based on five sources:^[7]
  1. Constitutional provisions
  2. Various laws made by Parliament
  3. Rules of both the Houses
  4. Parliamentary conventions
  5. Judicial interpretations

PRIVILEGES:

 

Freedom of Speech in Parliament:

• The freedom of speech and expression guaranteed under Article 19(2) provided to a member of the parliament is different. The freedom of speech guaranteed to citizens under A. 19 (1) (a) is therefore separate and independent of Article 194 (1) and does not control the first part of clause 1 of A.194.
• It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulate the proceedings of the parliament. He/she cannot be sued for defamation for something which was said by him/her during the session.
• Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
• Under Article 121 of the Constitution, the members of the parliament are prohibited from discussing the conduct of the judges of the Supreme Court and the High Court.

 

Freedom from Arrest:

• The members enjoy freedom from arrest in any civil case 40 days prior 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 houseto which s/he 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, of 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.

 

Right to Prohibit the Publication of Proceedings:

• Article 105(2)of the Constitution says that 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 coherence and national importance, it is essential that the proceedings should be conveyed to the public to aware them of what is going on in the parliament.

 

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.^[8]

Right of Publication of proceedings

Clause (2) of Article 105 says 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.

 

One of the privileges is that a Member of Parliament cannot be arrested in a civil case, 40 days before the commencement of the Parliamentary session or Committee meeting, and 40 days thereafter. This privilege is already incorporated under Section 135A of the Civil Procedure Code, 1908.However, in criminal matters, Members of Parliament are not discriminated from a common citizen. It means that a Member of Parliament does not enjoy any immunity from being arrested in a criminal case, during the session, or otherwise.

LEADING CASE LAWS:

Raja Ram Pal vs Speaker, Lok Sabha & Ors ^[9]

“Parliamentary privileges in India. For the first time, a limited right of freedom of speech was conferred on the Members of Legislature by the Government of India Act, 1919 (Section 67). By the Legislative Members Exemption Act, 1925, two parliamentary privileges were allowed to Members;

(i) Exemption from jury service; and

(ii) Freedom from arrest. The Government of India Act, 1935 extended the privileges conferred and immunities granted. The Indian Independence Act, 1947 accorded sovereign legislative power on the Indian Dominion.”

Amrinder Singh vs Spl.Committee,Punjab Vidhan … ^[10]

First Report (Lord Nicholas) which describes Parliamentary Privilege as:

“Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their Members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.”

Kalpana Mehta And Ors. vs Union Of India And Ors. ^[11]

“Parliamentary Privilege was introduced to prevent any undue interference in the working of the Parliament and thereby enable the members of the Parliament to function effectively and efficiently without unreasonable impediment. Till date, Parliamentary Privilege remains an important feature in any parliamentary democracy. The concept of Parliamentary Privilege requires a balancing act of two opposite arguments as noted by Thomas Erskine May:-

―On the one hand, the privileges of Parliament are rights ‘absolutely necessary for the due execution of its powers’; and on the other, the privilege of Parliament granted in regard of public service ‘must not be used for the danger of the commonwealth.‖72 M.1 Parliamentary privilege under the Indian Constitution.”

1. ^{“Archived copy”(PDF). Archived from the original(PDF) on 2010-04-23. Retrieved 2011-05-10.}
2. ^{“Announcements”. Archived from the original on 2010-04-23. Retrieved 2010-07-05.}
3. ^{But in Italy the Constitutional Court has recognized privilege also to a text – the inadmissible written question – never published on the parliamentary acts: Buonomo, Giampiero (2004). “E la 140/03 (per la parte superstite) entra per la prima volta in una decisione di merito sull’insindacabilità delle opinioni”. Diritto&Giustizia Edizione Online. Archived from the original on 2016-03-24. Retrieved 2016-04-05.}
4. ^{^ Jump up to:ab “Speaker’s Statement”. House of Commons Daily Debates. Hansard. 3 December 2008. Retrieved 5 December 2008. I should also remind the House, as stated in chapter 7 of “Erskine May,” that parliamentary privilege has never prevented the operation of the criminal law. [Interruption.] Order. The Joint Committee on Parliamentary Privilege in its authoritative report in 1999 said that the precincts of the House are not and should not be “a haven from the law”.}
5. ^{5.“How Parliament works”. www.parliament.uk. Retrieved 10 May 2011.}
6. “Guide for witnesses giving written or oral evidence to a House of Commons select committee” (PDF). parliment.uk. United Kingdom House of Commons. February 2016. Archived (PDF) from the original on 2 June 2022. Retrieved 13 February 2023.

^{7. The Privileges of Members of Parliament, Dhristi IAS}

^8.ibid

^{9. Raja Ram Pal vs Speaker, Lok Sabha & Ors, Writ Petition (civil) 1 of 2006}

^{10. Amrinder Singh vs Spl.Committee,Punjab Vidhan … T.C. (C) NO.1 of 2009,W.P. (C) NO. 442 of 2008,W.P. (C) NO. 443 of 2008}

^{11. Kalpana Mehta And Ors. vs Union Of India And Ors., WRIT PETITION (CIVIL) NO. 558 OF 2012}