The scope of protection of immunity available to the members of Parliament is quite wide and is not confined to only against judicial proceedings but it is available to them against all civil actions and criminal proceedings for anything said in the house of the Parliament. The object of the protection is to enable the members to speak their minds in Parliament both freely and fearlessly. Privileges simply means an exceptional right or exemption but legally it means exemption from some duty, burden, attendance, or liability.
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PARLIAMENTARY PRIVILEGES
Each House collectively and the members of each House individually enjoy some peculiar rights and without these rights, the members will not be able to discharge their functions. The rights entitled to these members are more than other bodies or any individuals. Article 105 of the Indian Constitution provides for privileges in India.
OBJECT
The main objective behind providing parliamentary privileges to the members of the parliament is to safeguard the freedom, authority, and most importantly the dignity of the Parliament. The Constitution of India entrusted certain functions upon the Parliament and for the proper exercise of such functions privileges are very necessary. The members of the Parliament must remember that the necessary privileges are granted to them to perform their duties and functions freely in Parliament without any hindrance.
KINDS OF PARLIAMENTARY PRIVILEGES
FREEDOM OF SPEECH
Freedom of speech and debate that takes place inside the Parliament ought not to be impeached or questioned in any court or outside the Parliament. The Constitution of India guarantees this privilege to the house of parliament, the members of parliament, and committees under Article 105. The article gives absolute immunity to the members and committees from courts for anything said within the four walls of the house during proceedings. The article mainly protects the speech of the members within the house but if any member repeats or publishes a defamatory speech made by him within the house then the member does so on his responsibility and will be held liable for prosecution under section 500 of the Indian Penal Code.[1] But the new Article 361A which is incorporated in the 44th amendment of the Constitution of India gives constitutional protection to the members.
FREEDOM OF ARREST
This is another important privilege that is granted to the members of Parliament. Any member of parliament cannot be arrested 40 days before and 40 days after the session of Parliament on a civil proceeding. If any member gets arrested during this period then he must be released so that he can attend Parliament sessions. But it must be noted that freedom from arrest is available to the members-only, against civil arrest and it does not extend to arrest on the criminal charge, for contempt of court [2] or preventive detention.[3]
In case any member of the parliament commits any crime he will be arrested like any other ordinary person of the country. The privilege of freedom from arrest does not extend to imprisonment on a criminal charge or for detention under the Preventive Detention Act.[4]
THE RIGHT TO EXCLUDE STRANGERS FROM ITS PROCEEDINGS AND HOLD SECRET SESSIONS
The Indian House of Parliament also enjoys the right to go on a secret session to discuss some important matters similar to the power used by the House of Parliament in England. But currently, only in exceptional situations, such kind of secret sessions are held.
RIGHT TO PROHIBIT THE PUBLICATION OF ITS REPORTS AND PROCEEDINGS
The House of Parliament also enjoys some publication right through which it can prohibit the publication of proceedings in India. In Searchlight case[5], the Supreme Court held that the publication of an expunged portion of speech constituted a breach of the privilege of the house.
RIGHT TO REGULATE INTERNAL PROCEEDINGS
One more extraordinary right enjoyed is that the house has a right to regulate its internal proceedings and accordingly adjudicate upon such matters and the court will not interfere with what takes place inside the house. Moreover, the court of law cannot question the validity of the proceedings which took place inside the Parliament on the ground of any alleged irregularity of procedure. No court has the right to interfere in between the right of the House to regulate its internal affairs.
RIGHT TO PUNISH MEMBERS OR OUTSIDERS FOR CONTEMPT
This right is the cornerstone of parliamentary privilege. The house has the power to punish a person for its contempt or breach of privilege. The house is the sole judge of the question of whether any of its privileges have been infringed and the court cannot question the decision of the house on the point. If any member attempts contempt or breach of privilege then in such a situation each house has the power to punish its member. A member may be suspended or expelled from the house or may also be sentenced to jail.
PRIVILEGES AND FUNDAMENTAL RIGHTS
Every citizen of India has the right to freedom of speech and expression which is guaranteed by the Constitution of India under Article 19(1)(a) and this right is also subject to reasonable restrictions under article 19 clause (2). But the right under Article 105 is independent and is not subject to restrictions under clause (2) of Article 19.
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PRIVILEGES AND COURTS
The matter relating to parliamentary privileges and the powers of the court came up for consideration before the apex court in the Special Court reference case in 1978 [6]. In this case, Keshav Singh who was not a member of the U. P. Assembly was held guilty of contempt of the house and was sentenced to imprisonment for seven days. On behalf of Keshav Singh his advocate moved an habeas corpus petition alleging that his detention was illegal and mala fide because he was not allowed to defend himself. The petition was heard by the two judges bench of Allahabad and accordingly granted interim bail to Keshav Singh. After that, the assembly passed a resolution that the two judges, Keshav Singh and his advocate had committed contempt of the house and directed to immediately take Keshav Singh into custody. Along with that the two judges and the advocate were brought into custody before the house.
On this, the two judges and the advocate separately moved the petition under Article 226 in the High Court contending that the resolution amounted to contempt of court and that it can be set aside and its implementation be stayed by an interim order. Then the full bench heard the petition and passed an interim order which directed stay upon the implementation of the resolution of the assembly. After that, the warrant of arrest against the two judges was withdrawn but was asked to appear before the house and explain their conduct. The High Court again granted a stay against the implementation of this modified form of the resolution. At this stage, the President of India referred the matter to the Supreme Court under Article 143 for its advisory opinion. The Supreme Court by a majority of 6 to 1, held that the two judges were not guilty of committing contempt of the house by issuing an interim bail order. Under Article 226, the High Court has jurisdiction to order the release of a person from illegal detention. The Courts in India can examine the validity of the detention of a person sentenced by the Assembly.
CONCLUSION
So, the freedom which is specifically granted is freedom of speech, immunity to the members against the proceedings in the court of law, and right to publication to the house of the legislature but along with that these privileges have also received several interpretations from the courts. The constitutional provisions relating to privileges of the Parliament and the State legislature are similar. Both Articles 105 and 194 deal with the privileges of the legislature in India. Prior to the 44th amendment of the Constitution concerning other privileges, Articles 105(3) and 194(3) provided that the powers, privileges, and immunities of each house until they were defined by the Parliament and State legislature, shall be those of the House of Commons in England. But after the 44th amendment of the Constitution of India Article 105(3) and Article 194(3) as the case may be provided to that in other respects, the powers, privileges, and immunities of each house of parliament and the state legislature, as the case may be and of the members and committees of each house shall be such as may from time to time be defined by the parliament or state legislature. Until so defined shall be of that house and its members and committees immediately before the coming into force of the Constitution 44th amendment.
REFERENCES
[1] Jatish Chandra v. Hari Sadhan, AIR 1961 SC 613.
[2] Ansumali Majumdar v. State of West Bengal, AIR 1952 Cal. 632; A. K. Gopalan v. State of Madras, 1950 AIR 27.
[3] Ansumali Majumdar v. State of West Bengal, AIR 1952 Cal. 632.
[4] Smt. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
[5] M.S.M. Sharma v. Shri Krishna Sinha, AIR 1959 SC 395.
[6] The Special Court Reference Case, AIR 1965 SC 745.
BY RUMA MINJ | INDIAN INSTITUTE OF LEGAL STUDIES