Vous êtes sur la page 1sur 21

CONSTITUTIONAL

LAW
Parliamentary Privileges and
Freedom of Speech
“Parliament’s most important privilege is not to define
privileges”.

Under the Guidance of


Kuldeep Garg

Mr. Siddhartha Fuller 4th Sem

Assistant Professor of Law 17058


Group No.- 10
14/2/2019
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Acknowledgment
The success and final outcome of this project required a lot of guidance and assistance
from many people and I am extremely privileged to have got this all to the completion of
my project. All that I have done is only due to such supervision and assistance and I
would not forget to thank them.

I respect and thank Mr. Siddhartha Fuller for providing me an opportunity to do the
project work in the Rajiv Gandhi National University of Law and giving us all support
and guidance, which made me complete the project duly. I am extremely thankful to
RGNUL IT Dept. for providing 24-hr running internet connectivity which helps me a lot
in collecting research material.

(Kuldeep Garg)

i|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Contents

1. INTRODUCTION .......................................................................................... 1

1.1 What are Privileges?............................................................................................. 1

1.2 Need and importance of Parliamentary Privileges ............................................... 2

1.3 Extent and Scope of Parliamentary Privileges ..................................................... 3

2. PARLIAMENTARY PRIVILEGES .............................................................. 5

2.1 Main privileges of the Houses .............................................................................. 6

2.2 Freedom of Speech ............................................................................................... 8

3. COMPARISON WITH UK .......................................................................... 12

4. CONCLUSION ............................................................................................ 15

4.1 Abuse of Power .................................................................................................. 15

4.2 Codification ........................................................................................................ 16

5. BIBLIOGRAPHY ........................................................................................ 18

ii | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

1. INTRODUCTION

All strong democracies have at their core the recognition that “parliamentarians must be
free to speak their mind in the debates-and member of parliaments to represent their
constituents’ views–without fear or favor”. Parliamentary privileges protect the
legislature’s internal affairs from interference from the outside and from the judiciary.

1.1 What are Privileges?

A simple definition of privilege is that it is an exceptional right or exemption. In the legal


arena, the phrase ‘privilege’, is termed as “exemption from some duty, burden,
attendance or liability conferred by special grant in derogation of common right”. 1 It is
taken from privilegium, “a law passed in favor of or against a particular person”.

In Roman legal rule privilegium was used commonly as, “against a particular person”.
Later as the law progressed, the word exhibits only the meaning of “in favor of” of a
parliament. “It is in the latter sense that parliamentary privileges which are contrary to the
ordinary rights of the citizens and which are not subject to the ordinary law of the land.”

In Parliamentary language, the term applies to certain rights and immunities enjoyed by each
House of Parliament collectively and by members of each House individually without which
they cannot discharge their functions. They are enjoyed by individual members, because the
House cannot perform its functions without unimpeded use of the service of its members, and
by each House collectively for the protection of its member and the vindication of its own
authority and dignity.

According to Erskine May,

“Parliamentary privilege is the sum of certain rights enjoyed by each House


collectively... and by members of each House individually, without which they
could not discharge their functions, and which exceed those possessed by other
bodies or individuals. Some privileges rest solely on the law and custom of

1 Prititosh Roy, Parliamentary Privilege in India, Oxford, Oxford University Press, 1991.

1|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Parliament, while others have been defined by statute. Certain rights and
immunities such as freedom from arrest or freedom of speech belong primarily to
individual members of each House and exist because the House cannot perform
its functions without unimpeded use of the services of its members. Other rights
and immunities, such as the power to punish for contempt and the power to
regulate its own constitution belong primarily to each House as a collective body,
for the protection of its members and the vindication of its own authority and
dignity. Fundamentally, however, it is only as a means to the effective discharge
of the collective functions of the House that the individual privileges are enjoyed
by members.” 2

The definition elucidated above distinguishes important characters of parliamentary


privilege: it serves two purposes, enabling parliament to perform its duties and functions
and to maintain the parliament’s authority and independence from the executive.

1.2 Need and importance of Parliamentary Privileges

The object of Parliamentary privileges is to safeguard the freedom, the authority and the
dignity of Parliament. Privileges are necessary for the proper exercise of the functions
entrusted to Parliament by the Constitution.

According to John Hatsell “the privileges of Parliament are rights which are necessary
for the due execution of its powers”. Privileges “are enjoyed by individual members,
because the House cannot perform its functions without the unimpeded use of the
services of its members; and by each House for the protection of its members and the
vindication of its authority and dignity” 3. He has rightly pointed out:

“As it is an essential part of the constitution of every court of judicature, and


absolutely necessary for the due execution of its powers, that persons resorting to
such courts, whether as judges or parties should be entitled to certain privileges
to secure them from molestation during their attendance, the first and the highest
court in this kingdom, that the members, who compose it, should not be prevented
by trifling interruptions from their attendance on this important duty, but should,

2
Thomas Erskine May, Parliamentary Practice, Butterworths, London, 2011, p. 203.
3
Thomas Erskine May, Treatise On The Law, Privileges, Proceedings And Usage Of Parliament,
Butterworths, London, 2004.

2|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

for a time, be excused from obeying any other call, not so immediately necessary
for the great services of the nation.” 4

In Canada, House of Commons v. Vaid 5 , was a case concerning the management of


parliamentary employees, the Supreme Court of Canada defined parliamentary privilege
as a measure “to protect legislators in discharge of their legislative and deliberative
functions, and the legislative assembly’s work in holding the government to account for
the conduct of the country’s business”.

1.3 Extent and Scope of Parliamentary Privileges

In interpreting these privileges, therefore, attention must be given to the general principle
that the privileges of Parliament are granted to members in order that “they may be able
to perform their duties in Parliament without hindrance.” 6 They apply to individual
members “only insofar as they are necessary in order that the House may freely perform
its functions. They do not discharge the member from the obligations to society which
apply to him as much and perhaps more closely in that capacity, as they apply to other
subjects.” 7 Privileges of Parliament do not place a Member of Parliament on a footing
different from that of an ordinary citizen in the matter of the application of laws unless
there are good and sufficient reasons in the interest of Parliament itself to do so. 8

The immunity granted to members under article 105(2), covers anything said in
Parliament even though it does not strictly pertain to the business before the House. As
stated by the Supreme Court:

“The article confers immunity in respect of ‘anything said in Parliament’. The


word ‘anything’ is of the widest import and is equivalent to ‘everything’. The only
limitation arises from the words ‘in Parliament’ which means during the sitting of
Parliament and in the course of the business of Parliament... Once it was proved

4
John Hatsell, Precedents and Proceeding in the House of Commons, Relating to privilege of Parliament,
Hardpress, Los Angeles, 1796.
5
Canada (House of Commons) v. Vaid, AIR 2005 1 SCR 667 at ¶41.
6
Kaul & Shakdher, Practice And Procedure Of Parliament, Metropolitan Book Co,New Delhi , 2009, p.
219.
7
Ibid.
8
Ibid.

3|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

that Parliament was sitting and its business was being transacted, anything said
during the course of that business would be immune from proceedings in any
court. This immunity is not only complete but is as it should be... The courts have
no say in the matter and should really have none.” 9

The freedom of speech available to the members on the floor of the House is different
from that available to the citizens under Article 19(2). A law made under this article
providing for reasonable restrictions on the freedom of speech of the citizens would not
circumscribe the freedom of speech of the members within the walls of the House.
Members enjoy complete protection even though the words uttered by them in the House
are malicious and false to their knowledge. 10 Courts have no jurisdiction to take action
against a member for his speech made in the House even if it amounts to contempt of the
court. 11

The express constitutional provisions contained in Clauses (1) and (2) of Article 105 are
thus a complete and conclusive code in respect of the privilege of freedom of speech and
immunity from legal liability for anything said in the House or for publication of its
reports. Anything which falls outside the ambit of these provisions is, therefore, liable to
be dealt with by the courts in accordance with law. Thus, the privilege against assaults or
molestation is available to a member only when he is obstructed or in any way molested
while discharging his duties as a member of Parliament. In cases, when members were
assaulted while they were not performing any parliamentary duty, it was held that no
breach of privileges or contempt of the House had been committed. Similarly, the
privilege of Parliament will not be attracted if a libel or a reflection upon a Member of
Parliament does not concern his capacity as a member of the House and is not based on
matters arising in actual transaction of the business of the House. Further, a member does
not enjoy any exemptions from the operation of the ordinary laws of the land and it has
been held in a typical case that a member does not enjoy any special privilege in regard to
any defamatory speech made outside the parliament. 12

9
Tej Kiran Jain v. N. Sanjiva Reddy, AIR 1970 SC 1573.
10
Suresh Chandra Banerji v. Punit Goala, AIR 1951 Calcutta 176.
11
Surendra Mohanty v. Nabakrishna Choudhury, AIR 1958 Orissa 168.
12
Jatish Chandra Ghose v. Harisadhan Mukherjee, AIR 1956 Cal 433.

4|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

2. PARLIAMENTARY PRIVILEGES

Each House of the Indian Parliament collectively and its members individually enjoy
certain powers, privileges, and immunities which are considered essential for them to
discharge their functions and duties effectively without any let or hindrance. While the
more important of these privileges, namely freedom of speech in Parliament and
immunity of members from any proceedings in courts in respect of anything said or any
vote given by them in Parliament, are specified in the Constitution, itself and some of
them are specified in certain statutes and the Rules of Procedure and Conduct of Business
in Lok Sabha, others are at present based on the precedents and conventions which have
grown in this country, in terms of the provisions of the Constitution, until defined by
Parliament by Law.

Art. 105 of the Constitution which provides for powers, privileges, and immunities of the
Parliament and of the members and the Committee thereof, reads as follows:-

(1) Subject to provisions of this Constitution and to 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 or any report, paper, votes or
proceedings.

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

(4) The provisions 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

5|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

part in the proceedings of a House of Parliament or any Committee thereof as


they apply in relation to members of Parliament. 13

The corresponding provisions relating to the powers, privileges, and immunities of the
Houses of State Legislatures and of members and Committees thereof are contained in
Article 194 of the Constitution which are in identical terms to those in Article 105
relating to Parliament.

Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978 came into force with
effect from the 20 June 1979. Prior to that, clause (3) of Article 105 provided that in other
respect the powers, privileges, and immunities 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 the
House of Commons of the Parliament of the United Kingdom, and of its Members and
Committees at the commencement of the Constitution i.e. on the 26 January,. 1950.

2.1 Main privileges of the Houses

Some of the more important privileges of each House of Parliament and of its members
and Committee are as follows:—

• Freedom of speech in Parliament [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];
• 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

13
The Constitution of India , 1950, Art. 105.

6|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

proceedings of either House of Parliament unless the publication is provided to


have been made with malice. This immunity is also available in relation to reports
or matters broadcast by means of wireless- telegraphy (Article 361A);
• 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 Lok Sabha, Ninth edition);
• 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 attend as a witness before the other
House or a Committee thereof or before a House of State Legislature or a
Committee thereof without the permission of the House and they cannot be
compelled to do so without their consent (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 inquiry by a Committee........A witness may
be summoned by a Parliamentary Committee who may be required to produce
such documents 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).

7|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

In addition to the above-mentioned privileges and immunities, each House also


enjoys certain consequential powers necessary for the protection of its privileges and
immunities. These powers are as follows:—
• to commit persons, whether they are members or not for breach of privilege or
contempt of the House;
• to compel the attendance of witnesses and to send for papers and records;
• to regulate its own procedure and conduct of its business (Article 118 of the
Constitution);
• to prohibit the publication of its debates and proceeding (Rule 249 of the Rules of
Procedure and Conduct of Business in Lok Sabha);
• to exclude strangers from the secret sittings of the House (Rule 248 of the Rules
of Procedure and Conduct of Business in Lok Sabha);
• 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).

Apart from the privileges as specified in the Constitution, the Code of Civil Procedure,
1908, provides for freedom from arrest and detention of members under civil process
during the continuance of the meeting of the House or of a committee thereof and forty
days before its commencement and forty days after its conclusion. 14

2.2 Freedom of Speech

The Most important privilege of members of Parliament is freedom of speech in


Parliament. This privilege is embodied in clause (1) and (2) of Article 105 of the
Constitution. This privilege is based on Article 9 of the Bill of Rights, 1689 of the United
Kingdom whereby it was declared:—

“That the freedom of speech, and debate or proceedings in Parliament, ought not
to be impeached or questioned in any court or place out of Parliament.”

14 The Code of Civil Procedure, 1908, §135A.

8|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Thus no action can be taken against any member of Parliament in any court or before any
authority other than Parliament in respect of anything said or any vote given by him in
Parliament or any Committee thereof. It would be a breach of privilege to institute any
legal proceedings against a member in respect of anything said by him in Parliament.
A member cannot also be questioned in any court or by any agency outside Parliament
for any disclosures he may make in Parliament. The Committee of Privileges of Rajya
Sabha in their 12th Report, adopted by Rajya Sabha on the 20 December 1968, observed:

“..........It would be impeding a Member of Parliament in the discharge of his


duties as such Member if he is to be questioned in any place outside Parliament
for a disclosure that he may make in Parliament. The right of a Member of
Parliament to function freely and without fear or favor is in India, as in the U.K.,
a constitutional guarantee. This guarantee is subject only to the rules of the
House and ultimately to the disciplinary jurisdiction of the House itself and
investigation outside Parliament of anything that a Member says or does in the
discharge of his duties as Member of Parliament would amount to a serious
interference with the Member’s right to carry out his duties as such Member.” 15

The Committee also recommended:

“If in a case a Member states something on the floor of the House which may be
directly relevant to a criminal investigation and, if in the opinion of the
investigating authorities, it is of vital importance to them as positive evidence, the
investigating authority may make a report to the Minister of Home Affairs
accordingly. If the Minister is satisfied that the matter requires seeking the
assistance of the Member concerned, he would request the Member through the
Chairman to meet him. If the Member agrees to meet the Home Minister and also
agrees to give the required information the Home Minister will use it in a manner
which will not conflict with any Parliamentary right of the Member. If, however,
the Member refuses to respond to the Home Minister’s request, the matter should
be allowed to rest there.” 16

In pursuance of the above recommendations of the Committee of Privileges of Rajya


Sabha, the Ministry of Home Affairs have issued the following instructions to all State
Governments and Union Territory Administrations:
15
Kaul & Shakdher, supra note 6.
16
Ibid.

9|Page
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

“When it is found from disclosures made by a Member on the floor of the Rajya
Sabha/Lok Sabha that he is in possession of vital information in the criminal case
which is under investigation, the matter should be referred by the Superintendent
of Police to the State Governments/Union Territory. If the State Government/
Union Territory Administration is also of the opinion that the information in the
possession of a Member is of such vital importance that his assistance should be
sought, a detailed report may be sent to this Ministry. The matter will then be
taken up by the Minister of Home Affairs with the Member concerned through the
Chairman of Rajya Sabha/Speaker of Lok Sabha. The information that might be
made available by the Member will be communicated to the State Government/
Union Territory Administration.” 17

Thus, the speech and action in Parliament may be said to be unquestioned and free.
However, this freedom from external influence or interference does not involve any
unrestrained license of speech within the walls of the House. The right to freedom of
speech in the House is circumscribed by the constitutional provision in Article 121 that
the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his
duties shall not be discussed in Parliament except upon a motion for presenting an
address to the President praying for the removal of the judge. 18 Rules 352 and 353 of the
Rules of Procedure and Conduct of Business in Lok Sabha also guard against the making
of unwarranted allegations against a person. When a member violates any of these
restrictions, the Speaker may direct him to discontinue his speech, or order the
defamatory, indecent or un-parliamentary or undignified words used by the member to be
expunged from the proceedings of the House, or direct the member to withdraw from the
House, or put the question of suspension of the member from the service of the House.

It has been held by the Supreme Court that the freedom of speech conferred on members
under Article 105 is subject only to those provisions of the Constitution which regulate
the procedure of Parliament and to the rule and standing orders of the House, but is free
from any restrictions which may be imposed by any law made under Article 19(2) upon
the freedom of speech of an ordinary citizen. 19

17
Ibid.
18
The Constitution of India, 1950, Art. 121.
19
P.V. Narsimha Rao v. State, AIR 1998 4 SCC 626.

10 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Interpreting clause (1) of Article 194, the Supreme Court observed:

“.......The words regulating the procedure of the Legislature occurring in cl. (1) of
Art. 194 should be read as governing both „the provisions of the Constitution‟
and the rules and standing orders. So read, freedom of speech in the Legislatures
become subject to the provisions of the Constitution regulating the procedure of
the Legislature, that is to say, subject to the articles relating to procedure in Part
VI including Articles 208 and 211; just as freedom of speech in Parliament under
Article 105(1), on a similar construction, will become subject to the articles
relating to procedure in Part V including Articles 118 and 121.”

As already stated, for his speech and action in Parliament a member is subject only to the
discipline of the House itself and no proceedings, civil or criminal, can be instituted
against him in any court in respect of the same. Absolute privilege has been given in
respect of anything said or any vote given in Parliament or a Committee thereof so that
members may not be afraid to speak out their minds and freely express their views. It has
been held that though the words uttered by members in the House may be false and
malicious to their knowledge and though a speech delivered by a member in the House
may amount to contempt of court, no action can be taken against him in a court of law. It
has also been held that the disclosures made in the House by members cither by speeches
or questions cannot be made the subject-matter of a prosecution under the Official
Secrets Act.

It is also the duty of each member to refrain from any course of action prejudicial to the
privilege of freedom of speech which he enjoys. As declared by the House of Commons,
U.K. by a resolution on July 15, 1947:

“It is inconsistent with the dignity of the House, with the duty of a member to his
constituents and with the maintenance of the privilege of freedom of speech of any
member of his House to enter into any contractual agreement with an outside
body, controlling or limiting the member’s independence of action in Parliament
or stipulation that he shall act in any way as the representative of such outside
body in regard to any matter to be transacted in Parliament; the duty of a
member being to his constituents and to the country as a whole, rather than to any
particular section thereof.” 20

20
Kaul & Shakdher, Supra note 6.

11 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

3. COMPARISON WITH UK

India was ruled by English people for a long time For the proper functioning of the
government, they made laws while adopting their own pattern prevailing in England with
certain modifications i.e. they made laws in accordance with situations and circumstances
at that time. The system copied or based on English pattern exercised a great influence
upon the members of the Constituent Assembly who drafted the Indian Constitution, so,
naturally, this Constitution carries with it the British concept of Parliamentary privileges.

The Indian Constitution thus adopts a mean between the two extremes the American
system of judicial supremacy and the English principle which provides for the
ascendency of Parliament. Kania, C.J in re Delhi Acts observed:

“The principal point of distinction between British Parliament remains and that is
the Indian Parliament is the creature of the Constitution of India, and its powers,
rights, privileges, and obligations have to be found in the relevant articles of the
Constitution of India. It is not a sovereign body, uncontrolled, with unlimited
powers. The Constitution of India has conferred on the Indian Parliament powers
to make laws in respect of matters specified in the appropriate place and
schedules, and curtailed its rights and powers under other articles and in
particular by the articles found in Chapter IIIrd dealing with the fundamental
rights.” 21

Under Article 105(3) of the Constitution, the privileges of our Parliament are identical
with those of the House of Commons as they existed on the Jan 26th, 1950. The Supreme
Court, however, in 1964 held that the Parliament cannot claim all the privileges as
enjoyed by the House of Commons at the Commencement of the Constitution. It can
exercise only those privileges of the House of Commons which are incidental to
legislative functions. 22

21
Delhi Laws Acts, re AIR 1951 SCR 747 (765).
22
Keshav Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745.

12 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Right to prohibit the publication of its proceedings: It is another important privilege


which has been enforced by the Parliament on various occasions with a specific intention,
only to prevent malafide publication of any inaccurate report or expunged portions of any
proceeding. Unlike England, in India, there is no rule or standing order of the Parliament
prohibiting the publication of its proceedings. In Searchlight case 23 the question before
the Court was whether the legislature is empowered to prohibit the publication of an
expunged portion of the proceeding of the House. The Supreme Court gave the answer in
affirmative and held that Article 105 (3) and Article 194(3) confer all those powers and
privileges on Parliament and State Legislature. K. Subba Rao, J. however, adopted
dissenting view. In his opinion in case of a conflict between Article 19 (1) (a) and Article
105(3) or 194(3), the privilege must yield to the extent it violates fundamental right as, if
and when any law is made to define the privileges of parliament or state legislature it
would be subject to fundamental rights. Thus, here it was decided that only one thing
need to be proved to claim privileges and that is concerned privilege was enjoyed by
House of Commons in 1950, at the time of commencement of constitution. But in Keshav
Singh case, SC gave its advisory opinion as :

“House of Commons enjoyed the privilege to commit a person for its contempt by
a general warrant, which is non-justiciable as a Superior Court of Record and not
as a legislature. Even if the House of Commons has this privilege as a legislative
organ, the legislature cannot claim it as the Indian Constitution also envisages
fundamental rights and the doctrine of judicial review, particularly. Article 32
and 226 impose a duty to enforce the fundamental rights by the Supreme Court
and the High Court respectively. Thus the House cannot claim those privileges
existing in the House of Common at the Commencement of Constitution as a
Superior Court of Record. But only those powers of House of Commons which are
an integral part of its privileges and which are incidental to the legislative
function. Whether a particular privilege exists or not, it is for the courts to give a
definitive answer by finding out if such a privilege was being enjoyed by House of
Commons at the commencement of the Constitution. Once it comes to the
conclusion that such privilege exists, then it is for the House to judge the occasion
and manner of its exercise and the courts would not sit in judgment over the way
the House has exercised its privilege.” 24

23 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.


24
Supra note 27.

13 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

Power to Commit for Contempt: One of the most important privileges available to
Parliament is the power to commit for its contempt and also defined as the 'keystone of
Parliamentary privilege'. The power is identical with that of House of Commons in
England. The power to punish for contempt was not available to the legislature under the
Government of India Act, 1919. For the first time, Government of India Act, 1935
conferred such powers. In India, like the House of Commons, it has been the practice of
each of the House to exercise privilege under great limitation and conditions. The penal
powers of the House for breach of privilege or contempt of the House are, however,
exercised only in extreme case where a deliberate attempt is made to bring the institution
of Parliament into disrespect and undermine public confidence.

It may be mentioned that the Select Committee on Parliamentary • Privileges of House of


Commons (U.K.), 1967 made the following recommendations:

“The House should exercise its penal jurisdiction (a) in any event as sparingly as
possible, and (b) only when it is satisfied that to do so is essential in order to
provide reasonable protection for the House, its members from such improper
obstruction. or attempt at or threat of obstruction as is causing, or is likely to
cause, substantial interference with the performance of their respective function.”

Subsequently, the Committee in their Third Report (1996-97) reiterated this


recommendation, and the House of Commons, U.K., adopted it on 6th February 1978.
The above approach has normally been followed in matters of privilege by Lok Sabha as
well. Thus the Committee of Privileges of Seventh Lok Sabha in their First Report
presented to the House on 8 May 1981, observed inter alia as follows:

“The Committee feels that it adds to the dignity of one if power in a democratic
system is exercised with restraint; the more powerful a body or institution, the
greater restraint is called for particularly in exercising its penal jurisdiction.”

It is also a tradition of the House that unqualified and unconditional regrets sincerely
expressed by the persons guilty of breach of privilege and contempt of the House are
accepted by the House and the House normally decides in such cases to best consult its
own dignity by taking no further notice of the matter.
14 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

4. CONCLUSION

After going through all the research, the researcher is in a good position to critically
evaluate it w.r.t. abuse of these privileges and loopholes in the privileges. On the other
hand, it has various benefits also which has been discussed in the introduction part. Its
provisions were taken from the United Kingdom, and it dates backs to the 19th century
which are carried forward with new legislatures. Finally, at the time of commencement of
the Constitution of India, it was added that few certain privileges will consist of
parliamentary privileges till the time legislature adds new law. All other privileges were
considered to be the same as that enjoyed by the Parliament of the UK.

4.1 Abuse of Power

Generally, the affairs of parliament are not covered by courts. The intent of the members
of the constituent assembly was to keep it outside the preview of Judicial Review and
gave parliament the supremacy as enjoyed by House of Commons, but what they forgot
is that, in UK parliament is sovereign while sovereignty resides the Constitution in India.
In UK parliament is absolute, but in India, parliament is subjected to various and
numerous limitations.25 Whenever the matter has been taken in courts 26, parliament and
legislatures have shown great discontentment regarding that. Although, legislators have
privileges to speak anything (subjected to Art. 107 and Art.121) they have a moral
responsibility to maintain the decorum of the house as the representatives of the people.
When a member violates any of the rules, the Chair has ample powers conferred by the
rules to deal with the situation. In view of the immunity conferred on the member’s right
to speech and action in the House, its misuse can have serious effects on the rights and
freedom of the people who could otherwise seek the protection of the courts of law.
Members, therefore, as people’s representatives, are under greater obligation to exercise
this right with utmost care and without any prejudice to the law of the land. But the last

25 Anonymous, “Codification of Parliamentary Privileges”, Economic and Political Weekly, Vol. 2, No. 27
,July, 1967, p. 1236.
26 Keshav Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745.

15 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

couple of years have shown a sharp decline in standards of parliamentary conduct and
decorum and erosion of Speakers or presiding officers of the House. The Committee of
Privileges has emphasized that a Member of Parliament does not enjoy unrestricted
license of speech within the walls of the House. The Committee has observed:

“It is against the rules of parliamentary debate and decorum to make defamatory
statements or allegations of incriminatory nature against any person and the
position is all the worse if such allegations are made against persons who are not
in a position to defend themselves on the floor of the House. The privilege of
freedom of speech can only be secured, if members do not abuse it.”27

Thus, unless the privileges of Parliament are exercised with great discretion, there is a
risk that the reputation of parliament may be maintained at the expense of some part of
the liberty of the individual which it is parliament’s duty to defend. 28

4.2 Codification

As contained in Art. 105 of the Constitution of India, privilege are those as enjoyed by
House of Commons till the time any particular act has been made by the parliament. But
it had never been codified. It is quite understandable that it is due to love of power that
legislators enjoy, that it has not been codified. As codification will bring clarity and
precision and will also lead to the discarding of anachronistic power, immunities, and
privileges inherited by our constitution from House of Commons.

Our constituent makers left this responsibility to parliamentarians. Dr. B.R Ambedkar
said that.

“…the privileges of parliament were much wider and extremely difficult to define.
In this view, it was not possible rather practicable to enact a complete code on
privileges and immunities of parliament as a part of the constitution and the best
course was to leave it to parliament itself to define its privileges….” 29

27 Kaul & Shakdher, supra note 6.


28 Anonymous, “Codification of Parliamentary Privileges”, Economic and Political Weekly, Vol. 2, No. 27
,July, 1967, p. 1236.
29 Constitutional Assembly Debate, Oct. 16, 1949, p. 375.

16 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

These few privileges were only kept as transitionary privileges till a new law is made.
They desired that is should be done without any undue delay. But codification never
happened, as the privileges currently enjoyed by them are very subjective and open to
their wishes. Legislature considers all the privileges that are enjoyed by House of
Commons to be applicable to them. But SC in various cases has held that
parliamentarians only have those powers which relate to legislative function, not others.
SC has made quite clear that once these privileges are codified, these privileges will not
remain constitutional provision, but will come under the ambit of ordinary laws and can
be reviewed whenever it transgresses any constitutional rule.

It was first proposed in 1950 but was rejected G.V. Mavlankar by reasoning that it would
curtail the privileges of parliamentarians. Again in 1954, it was again rejected by the
presiding officer. Many other efforts were made, but no success was achieved.

It is suggested that immediate steps for the codification of Parliamentary privileges in the
need of the hour. Parliament is a part of the democratic process. Priority rights of the
people should take precedence over the privileges of Parliament. Their precedence to
fundamental rights causes obstructions to the democratic function of the Parliament.
Parliament being representative of the people should not become the master of the people
by not codifying the privileges. All citizens should have the right to criticize the
functioning of any institution. When we are proceeding towards transparency in the
functioning of the state, then Parliament is also one of the limbs of the State and cannot
claim immunity for its sections which are in contravention or encroach upon the
fundamental rights of the citizens. Therefore, the Parliament should take necessary steps
for the codification of Privileges now the Indian Democracy is well natured, its fear is
unfounded. Rather codification will enhance the status and reputation of Parliament.

“Parliament’s most important privilege is not to define privileges”.

17 | P a g e
PARLIAMENTARY PRIVILEGES AND FREEDOM OF SPEECH

5. BIBLIOGRAPHY

BOOKS

• V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, 2017.


• M.Laxmikant, Indian Polity, MHE, Chennai, 2017.
• DD Basu, Shorter Constitution of India, Lexis Nexis, New York, 2011.
• DD Basu, Constitutional Law of India, Lexis Nexis, New York, 2012.
• Kaul & Shakdher, Practice, And Procedure Of Parliament, Metropolitan Book
Co, New Delhi, 2009.

ARTICLES

• Anonymous, “Codification of Parliamentary Privileges”, Economic and Political


Weekly, Vol. 2, No. 27, July 1967.
• Shivprasad Swaminathan, “The Conflict Between Freedom of the Press and
Parliamentary Privileges: An Unfamiliar Twist in a Familiar Tale”, National Law
School of India Review, Vol. 22, No. 1 (2010).

STATUTES

• The Constitution of India, 1950.


• The Code of Civil Procedure, 1908.

WEB SOURCES

• www.jstor.org
• www.shodhganga.inflibnet.ac.in
• www.scconline.com
• www.manupatra.com
• https://rajyasabha.nic.in/
• https://www.parliament.uk/

18 | P a g e