In democracy, popularly elected institutions such as the Parliament or State Legislative Assemblies represent the will of people. They perform the important function of law making which forms the basis of functioning of a democratic political system. In order to enable the members of Parliament to perform their functions without any prejudice or pressure, the members are given certain rights and special treatment, which are known as Parliamentary privileges. In fact privileges are those rights which are available to a class of persons but not available to others. According to Sub hash Kashyap, a noted authority on Parliament, privilege means a special or exceptional right or freedom or an immunity enjoyed by a particular class of persons or some individuals. It is special in the sense that it is a right or freedom which is not available to the rest of the people.

 

The Parliamentary privileges are available only to two Houses, their members and their Committees. Though the President is a part of the Parliament he is not covered by these privileges. However, the President enjoys immunity on certain criminal and civil matters as specified in the Constitution. The rationale behind granting these privileges is that they enable the members of Parliament and its Committees to maintain their independence of action and dignity of position, while performing their duties or discharging their responsibilities.

 

It should be noted that the privileges are available to members of Parliament and its Committees only during the period and to the extent they are performing their duties and responsibilities as member of the Parliament. Again, the members are not, however, exempted from the operation of ordinary laws of the land. When members are not performing their official duties, it is held that no breach of privilege or the contempt of the house is committed. Further, it should .be noted that the members do not enjoy any exemption from the operation of ordinary laws of land.

 

Constitutional Provisions-The privileges of members of Parliament are derived from three sources. First, there are certain privileges which are mentioned in the Constitution itself. Second, some of the privileges are specified in Statutes and the Rules of Procedure and Conduct of business in the Lok Sabha. Third, some of the privileges are derived from the precedents and conventions developed over a period of time.

 

Some of the privileges of the members of Parliament are mentioned in Article 105 of the Constitution, while the privileges of members of Legislative Assembly are mentioned in Article 194 of the Constitution. Article 105 provides the following:

 

(i) Subject to the provision of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(ii) 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 proceeding.

(iii) In other respects the power, privileges and immunities of each House of Parliament and of the members and of the Committees 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 its members and Committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act 1978.

 

 

(iv) The provisions of clauses (i), (ii) and (iii) shall also apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceeding of a House of Parliament or any Committees there of as they apply in relation to member of Parliament. It should be noted that before the Forty-Fourth Amendment, 1978, clause three of Article 105 provided that the privileges of members of Parliament were to be the same (with respect to the matters not mentioned in the Constitution) as those of British House of Commons, its members and Committees at the commencement of the Constitution until our Parliament defined them by law. The 44th Amendment has made only verbal changes in the position of privileges as even now without the reference of British House of Commons, the members of Parliament in India enjoy the same type of privileges as its counterpart in Britain because the privileges of Parliament are not defined by law by Parliament so far. Thus, after the 44th Amendment, there would be no mention of the term the British House of Commons in Article 105.

 

Important Privileges-The privileges of Parliament and its members are not codified so far. Some privileges expressly mentioned in Article 105 have been mentioned earlier. On the basis of parliamentary practices, established conventions, legal provisions and opinion of constitutional experts, the following privileges of Parliament and its members can be listed:

 

1. Freedom of speech inside the parliament Article 105 (1).
2. Immunity from court proceedings available to members of Parliament with respect to anything said or any vote cast by a member or anything published under the authority of parliament-Article 105 (2).
3. According to the provisions of Article 122, courts are prohibited to inquire into proceedings of Parliament. In other words, the courts can not question the legal validity of parliamentary proceedings.
4. It is provided in the section 135 A of the code of civil procedure that a member of Parliament shall not be arrested during the continuance of the session of the House, 40 days before the commencement of the Session and 40 days after the date of the conclusion of the session.
5. Members of Parliament are exempted from the obligation to serve as juries.
6. According to the Rules 232 and 233 of the Rules of procedures of the Lok Sabha the immediate information is to be given to the House by the concerned authorities about the arrest or the release of a member of the House. The same rules also provide that a member of the Lok Sabha can not be arrested within the premises of the House without the prior permission of the Speaker.
7. Rule 252 of the Rules of procedure of the Lok Sabha provide that the House is not liable to disclose the proceedings or decision of a secret sitting of the LokSabha.
8. The members and other officers of the House (Lok Sabha) can not be compelled to appear as witness before the other House or the state Legislature. However, they can act as witness with their consent.
9. Also the officers and members of the Lok Sabha can not be compelled to give evidence before any court of Law without the permission of the House, with respect to any matter regarding the proceedings of the House.
10. The Parliamentary commIttees have the power to sununon persons, papers and. records relevant for an inquiry undertaken by the committee. The committee may also administer oath to the persons appearing as witnesses. The evidence submitted before the committee can not be disclosed before the Report of the committee has been laid on the Table of the House.
11. In addition to the above privileges, the House as a collective entity also enjoys certain consequential privileges such as committing persons for the breach of the privileges of the House, compelling attendance of person as witnesses, regulating its own procedure, restricting publication of its debates and proceedings or to exclude strangers from the gallery of the House.

 

It should be noted that the most important privilege enjoyed by a member of Parliament is the freedom of speech inside the Parliament. Though, the right to freedom of speech is available to citizens also, it is subject to certain restrictions imposed under Article 19 (2). However, the members of Parliament are even free from these restrictions, while speaking inside the House. No action can be taken against them in any court of Law.

 

This was upheld by the, Supreme Court in the famous ‘searchlight’ case. Even if the speech of a member is tantamount to the contempt of the court, no action can be taken against such member in any court. In such matters, the house itself is authorised to take appropriate disciplinary action against the concerned member. The rationale behind such extensive freedom of speech given to members is to enable them to express themselves before the House without any fear or prejudice.

 

In this respect it should be noted that certain restrictions are also imposed by the Constitution on the debates of Parliament. Thus, article 121 of the Constitution provides that no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or the High Courts except upon a motion for the removal of the judge is under consideration in the House. There is no distinction between the privileges of the two Houses. Same privileges are available to the members of the both Houses of Parliament. Similar privileges are also available to the members of state Legislatures.

 

Breach of Privilege and Contempt of the House

According to the noted constitutional expert Sub hash Kashyap, breach of privilege is an act of attack on or disregard of any privileges, rights or immunities of either House of Parliament or its committees or its members. On the other hand, the contempt of the House is defined as an act of omission which obstructs the Parliament or its members from efficient discharge of its functions or which has the effect of lowering the dignity of Parliament or its members.

 

The notion of contempt of the House can not be strictly defined. The distinction between the breach of privilege and contempt of the House is that there can be contempt of the House without any breach of Privileges. The contempt is more concerned with an act of disrespect or disregard to the authority or dignity of the Parliament or its members. In any case, the sole authority to decide about the contempt is the Parliament.

 

Again, there are certain practices and conventions with respect to parliament which should be followed by concerned persons in usual course, but if they are not followed, it is considered a breach of previleges. Non-observance of these practices is simply termed as improper on the part of the concerned authorities. The example of these practices is not to make policy Statement outside the Parliament if it is in session, extending full cooperation to the members of parliamentary committees during their tour, or displaying due courtesy to members of Parliament in the official functions etc.

 

Punishment for Breach of Privilege or Contempt of the House

Each House of Parliament or State Legislature is competent and empowered to punish persons including their own members, if they are found guilty of breach of privilege or contempt of the House. The punishment may be in the form of reprimanding or admonition or even imprisonment in extreme cases. The imprisonment may extend till the ongoing session of Parliament or the State Legislature as the case may be. In addition, the House may award other punishments to its members such as suspension from the House for a definite period or even expulsion from the House.

 

The procedure for bringing the motion for breach of privilege or contempt of the House is given in the Rules of procedures of the Lok Sabha (Rules 222 to 228 and Rules 313 to 316). Accordingly, any member may raise the question of breach of privilege by giving notice to that effect to the Secretary-General of the concerned House before the Commencement of the sitting of the day. If the Speaker or the Chairman of the House gives his consent to raise the matter in the House, the concerned member is allowed to raise the matter just after the Question Hour is over.

 

The member is first required to take the leave of the House. If not less than 25 members of the House agree to the motion, the leave of the House is granted. After that the matter is usually referred to the privilege committee for further examination. The Committee submits its report in the House within a stipulated period. The Report of the privilege committee is taken for consideration by the House. The House may agree or disagree with the report. The final action is taken as per the decision of the House regarding the Report of the committee. The question of privilege is given priority over other matters included in the business of the House.

 

However, the House adopts a liberal view with respect to the majority of cases of breach of privileges. Most of the time, the unconditional apology tendered by the concerned offender may cool down the matter. Many a time, the Parliament finds it below their dignity to punish in each case of breach of privilege.

 

The keystone of the entire edifice is the notion that the Parliament is the sole judge of the question whether there is a breach of privilege or not. Thus, their power to punish persons for the contempt of the House is not subject to judicial interference. This position was upheld by the Supreme Court in 1959 in the Searchlight case and further by the High Court of Allahabad in Keshav Singh case in 1965. The above legal position pre¬vails even today. Thus, each House of Parliament or State Legislature is the master of its own procedure and is the sole judge of the question whether its contempt has been committed or not.

 

Freedom of the Press and Parliamentary Privileges

The press plays an important role in the democratic process. In fact the press is the medium between the people and the government institutions. The Freedom of the press is a fundamental right under right to freedom of speech within Article 19 (1) a. If the proceedings of the House are published under the authority of the House, the concerned persons shall not be liable to any judicial proceedings in the court of Law Normally, no restrictions are imposed on the publication of true proceedings of the House in the Newspaper. However, in the following cases, the publication in press involves the breach of privilege:

 

(a) If newspaper reports are malafide and there is deliberate misrepresentation of facts,

(b) If the proceeding of a committee is published before it submits its report to the house;

(c) If a newspaper publishes the proceedings of a secret sitting of the House; and

(d) If those portions of debates or proceedings are published which are expunged from the proceedings of the House.

 

It should be further noted that fair and valid criticism or shortcomings of the Parliament, published in the Newspapers or books are not punished. No action is taken in fair and bonafide criticism of the House.