Parliamentary privileges are an absolute advantage given to the members of the Parliament for properly discharging their duties and enjoy democratic functioning. The rights manifested to the members are free from any intimidations or punishments. Provisions for granting privileges to the members are embodied under Article 105 and 194 of the Indian Constitution. Members enjoy absolute freedom of speech and publication under Parliamentary authority, they are entrusted to make rules, have independent autonomy to control the proceedings and have freedom from being arrested or can regulate secret sessions. The rights are undivided and are subject to the provisions of the Constitution.
Parliamentary privilege is defined under Section 3 of The Parliamentary Proceeding (Protection Of Publication) Act, 1977, ‘Publication of reports of Parliamentary proceedings privileged’ is provided, where no member shall be held liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of substantially true report of any proceeding of either House of Parliament.[i]
Privilege is a special right, benefit or advantage given to a member of the Parliament.[ii]
The term ‘parliamentary privilege’ refers to the powers, privileges and immunities enjoyed by Houses of Parliament and their members in the performance of their duties. “These privileges are an exception to ordinary law and are intended to allow parliamentarians to perform their duties without fear of intimidation or punishment, and without impediment.”[iii] In spite of this, parliamentary privilege is the privilege of the Houses of Parliament “as a whole and not simply of the individual member”.[iv]
In the case of Raja Ram Pal the term privilege is interpreted as “A special right, advantage or benefit conferred on a particular person.[v]
According to Sir Erskin May, ‘Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament or by either house of parliament without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.’[vi]
Relevant Provisions of Privilege in the Indian Constitution
Article 105 and 194 of the constitution of India deals with the power privileges and immunities of parliament and its members and of their state legislature and their members respectively[vii]
Main privileges of Parliament, its Committees and Members in Publication of Parliamentary Proceedings
Important privileges of each House of Parliament and of its members and Committee are as follows:
- Freedom of speech in Parliament, subjected in the premises of the Parliament and not outside [Article 105(1) of the Constitution];
- Immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committees thereof [Article 105(2) of the Constitution];
- Immunity to a person from proceedings of any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes, or proceedings [Article 105(2) of the Constitution];
- Members of either House of Parliament shall be entitled to receive such salaries and allowances as may be determined by the Parliament by law (Article 106 of the Constitution).
- Prohibition on the courts to inquire into proceedings of Parliament (Article 122 of the Constitution);
- Immunity to a person from any proceedings, civil or Criminal, in any court in respect of the publication in a newspaper or a substantially true report of the proceedings of either Houses unless the publication is provided to have been made with malice or ill intentions. This immunity is also available in relation to reports or matters broadcast by means of wireless- telegraphy (Article 361A);
- Exemption of members from liability to serve as juror;
- Prohibition of disclosure of the proceedings or decision of a secret sitting of the House;
- Rights of the House to receive immediate information of the arrests, detention, convictions, imprisonment and release of a member (Rules 229 and 230 of the Rules of Procedure and Conduct of Business in the house of Lok Sabha);
- Prohibition of arrest and services of legal process within the precincts of the House without obtaining the permission of the Speaker (Rules 232 and 233 of the Rules of Procedure and Conduct of Business in Lok Sabha, Ninth Edition);
- Members or officers of the House cannot give evidence or produce documents in courts of law, relating to the proceedings of the House without the permission of the House. (First Report of Committee of Privileges of Second Lok Sabha, adopted by Lok Sabha on 13 September, 1957);
- Members or officers of the House cannot attend as a witness before the other House or a Committee or before a House of State Legislature or a Committee without the permission of the House and they cannot be compelled to do so without their consent or official notice (Sixth Report of Committee of Privileges of Second Lok Sabha, adopted by Lok Sabha on 17th December, 1958);
- All Parliamentary Committees are empowered to send for persons, papers and records relevant for the purpose of the enquiry by a Committee a witness may be summoned by a Parliamentary Committee who may be required to produce such documents before the court or speaker as are required for the use of a Committee (Rules 269 and 270 of the Rules of Procedure and Conduct of Business in Lok Sabha);
- A Parliamentary Committee may administer oath or affirmation to a witness examined before it (Rule 272 of the Rules of Procedure and Conduct of Business in Lok Sabha);
- The evidence tendered before a Parliamentary Committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid on the Table of the House (Rule 275 of the Rules of Procedure and Conduct of Business in Lok Sabha).
In addition to the above mentioned privileges and immunities each House also enjoys certain consequential powers necessary for protection of its privileges and immunities.
These powers are as follows:
(i) to commit persons, whether they are members or not for breach of privilege or contempt of the House;
(ii) to compel the attendance of witnesses and to send for papers and records;
(iii) to regulate its own procedure and conduct of its business (Article 118 of the Constitution);
(iv) to prohibit the publication of its debates and proceeding (Rule 249 of the Rules of Procedure and Conduct of Business in Lok Sabha);
(v) to exclude strangers from the secret sittings of the House (Rule 248 of the Rules of Procedure and Conduct of Business in Lok Sabha);
(vi) to regulate admission to and order withdrawal/removal of strangers from any part of the House (Rules 386, 387, 387A of the Rules of Procedure and Conduct of Business in Lok Sabha).[viii]
Limitation on Publication of Parliamentary Proceedings
Normally no restrictions are imposed on reporting the proceedings of the House. But when debates or proceedings of the House or it Committees are reported;
- Mala fide or;
- There is willful misrepresentation or;
- Suppression of speeches of particular members
It is regarded as breach of privilege and Contempt of the House and the offender is liable to be punished.
Freedom of Speech and immunity given to Members
The freedom of speech available to the members on the floor of the House is different from that available to the citizen under Article 19(2). [ix] Members enjoy complete protection even though the words uttered them in the House are malicious and false to their knowledge.[x] The authority of court is also restricted to take action against a member for his speech made in the House even if it amounts to contempt of the court is involved .[xi] Thus, the expressed provision under Article 105 clauses (1) and (2) are conclusive code in respect of the privilege of freedom of speech and immunity from legal liability for any aforesaid statement uttered in the House or for publication of its reports.[xii]
Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjrr and Ors.[xiii]
The appellant is an elected member of the West Bengal Legislative Assembly made a publication of slanderous accusations against the respondent, who was functioning as a Sub-Divisional Magistrate with an intention to be read by the other members of the Parliament. Thus, Court held the provision under Article 94 even though disallowed by the speaker were a part of the proceedings of the house and appellant will not be prosecuted, as Article 194(1) not only allow freedom of speech but also give the right to ask question and publish them in the press.
P.V. Narsimbha Rao v. State
Some of the MP’s received bribe to vote against the motion of the no-confidence against the Prime Minister P.V. Narsimha Rao. In this case question arose that under Article 105(2) does any member of parliament have any immunity to protect himself in criminal proceeding against him?
Court held that, under Article 105(2) the members of the parliament will get immunity and thus, the activity to taking bribe by the MP’s will get immunity.
The special provisions granted under Article 105 and 194 of the Constitution to the members of Parliament under Article 105 and 194 for effective functioning of rules and implementation of laws is also subjected to impose duties upon them to make effective law which should not harm the rights of others. The acts of members are controlled and may bring certain liabilities if the rights of citizen are been infringed.
Frequently asked questions (FAQs)
1. What is Parliamentary Privilege?
Parliamentary privilege refers to rights and immunities enjoyed by the Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution.
2. Are these parliamentary privilege defined under any law?
According to the Constitution, the powers, privileges and immunities of Parliament and MP’s are to be defined by Parliament. Also under Section 3 of the Parliamentary Proceeding (Protection of Publication) Act, 1977 the definition is been provided.
3. What is breach of privilege?
A breach of privilege is a violation of any of the privileges of MPs. upon casting reflections on parliament and its committees; could be considered as breach of privilege. This may include publishing of news items, editorials or statements made in newspaper, TV interviews etc.
[i] Section 3 of the Parliamentary Proceeding (Protection of Publication) Act, 1977.
[ii] Report of Committee of Privileges in Narasimha Shankar Despande v. Balwant Lakshman, 1904 ILR Bom 381.
[iii]Parliamentary Privileges under Indian Constitution-A critique, Shobhganga (Oct 2017, 5PM) https://shodhganga.inflibnet.ac.in/bitstream/10603/27019/2/chapter%20-%201.pdf
[iv] United Kingdom, House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (Sept 2007, 199).
[v] Raja Ram Pal v. The Hon’ble Speaker, AIR 2007 SC 123.
[vi] Sir Thomas Erskine ,Treatise on the Law, Privileges, Proceedings and usage of Parliament, 1871
[vii] Preeti singh, Parliamentary Privileges, Acadamike(Aug 2014, 6PM) https://www.lawctopus.com/academike/parliamentary-privileges/
[viii] Parliamentary Privilege and Freedom of Speech (Aug 2019, 7PM) https://www.scribd.com/document/400658118/Parliamentary-Privilege-and-Freedom-of-Speech
[ix] M.S.M Sharma v. Shri Krishna Sinha, AIR 1959 SC 395.
[x] Suresh Chandra Banerji v. Sanjiva Reddy, AIR 190 SC 1573.
[xi] Surendra Mohanty v. Nabakrishna Choudhury, AIR 1951 Cal. 176.
[xii]Freedom of speech and immunity from court proceedings (Sept 2018, 7PM) https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER%E2%80%948.pdf
[xiii] Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjrr and Ors, AIR 1961 SC 613.