Political Sci Project 2014

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NATIONAL LAW UNIVERSITY, ODISHA

2014

POLITICAL SCIENCE (HONS.)

PROJECT ON

PARLIAMENTARY PRIVILEGES IN INDIA AND FRANCE

SUBMITTED TO: SUBMITTED BY:

DR. AFROZ ALAM PARU L PADHI

ASSISTANT PROFESSOR OF POLITICAL SCENCE 2011/ BA LLB/033

REGISTRAR (I/C)


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TABLE OF CONTENTS

PRIVILEGES: MEANING AND HISTORY ................................................................................. 3

PURPOSE BEHIND PARLIAMENTARY PRIVILEGES ............................................................ 4

THE JUSTIFICATION OF PARLIAMENTARY PRIVILEGES ................................................. 5

THE RELATION BETWEEN JUDICIAL REVIEW AND THE LEGISLATIVE PROCESS..... 7PRIVILEGES: INDIAN CONTEXT .............................................................................................. 9

REGARDING SPEECH ........................................................................................................... 11

REGARDING PUBLICATION ................................................................................................ 12

REGARDING VOTING ........................................................................................................... 13

REGARDING STATUTORY LAW ........................................................................................ 16

THE CONTROVERSY ................................................................................................................ 19

PARLIAMENT SOVEREIGNTY AND CONSTITUTIONAL DEMOCRACY .................... 19

FUNDAMENTAL RIGHTS AND PARLIAMENTARY PRIVILEGES ................................ 21

THE FRENCH MODEL ............................................................................................................... 23

FREEDOM OF SPEECH .......................................................................................................... 23

FREEDOM FROM ARREST ................................................................................................... 24

PUNISHMENT FOR OFFENCES ........................................................................................... 25

CONCLUSION ............................................................................................................................. 25

BIBLIOGRAPHY ......................................................................................................................... 26


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The sole object of Parliamentary privileges is, thus to protect the rights and dignities of the

members of Parliament or legislative bodies to the extent necessary to enable them to perform

their duties unhindered. The privileges of Parliament form a special kind of law of the land

administered and interpreted by Parliament itself without later review from any outside authority.

Parliament can punish anybody inside or outside the House who is guilty of offending against the

right and dignity of the House.5These privileges are a necessary condition for every legislative

body to enable them to discharge their multifarious duties efficiently on behalf of their respective

nations and even rights of citizens have to be curtailed so far as necessary for this purpose. Thus,

in order that there may be adequate ventilation of grievances, through examination of legislative

proposals, or reasonable scrutiny of administrative acts, it is essential that no member of the

legislature should be penalized for anything said within its four walls.6

PURPOSE BEHIND PARLIAMENTARY PRIVILEGES

Parliamentary privilege refers to the bundle of powers, rights and immunities necessary for the

effective performance of parliamentary functions. It is necessary to protect legislators in the

discharge of their legislative and deliberative functions, and the legislative assemblys work in

holding the government to account for the conduct of the countrys business7.

Without the protection afforded by parliamentary privilege, members would be handicapped in

performing their parliamentary duties, and the authority of Parliament itself in confronting the

executive and as a deliberative forum would be diminished. As Griffit and Ryle state:

Parliamentary privilege, even though seldom mentioned in debates, underpins the status and

authority of all Members of Parliament. Without this protection individual Members would be

severely handicapped in performing their parliamentary functions and the authority of the House

5M. G. Gupta: Some Aspects of Indian Constitution (2nd Ed.)6D.D.Basu: Commentary on the Constitution of India7Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, Background Paper No. 1/07available at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications


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itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen,

would be correspondingly diminished.8

Parliamentary privilege, in essence, is essential to the conduct of Parliaments business, as it is to

the maintenance of its authority and independence. At issue is the integrity and autonomy of the

institution itself. While certain rights and immunities, notably those attached to the freedom of

speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist

for theirpersonal benefit. Parliamentary privilege exists rather to protect the Houses themselves

collectively and their members when acting for the benefit of their House, against interference,

attack or obstruction9

Without parliamentary privileges, parliament could not discharge their functions efficiently andeffectively. These privileges have developed to allow Parliament to proceed with the business of

making legislation and reviewing the activities of the Executive without illegitimate interference

THE JUSTIFICATION OF PARLIAMENTARY PRIVILEGES

Parliamentary privilege refers to the bundle of powers, rights and immunities necessary for the

effective performance of parliamentary functions. It is necessary to protect legislators in the

discharge of their legislative and deliberative functions, and the legislative assemblys work in

holding the government to account for the conduct of the countrys business.10

Without the protection afforded by parliamentary privilege, members would be handicapped in

performing their parliamentary duties, and the authority of Parliament itself in confronting the

executive and as a deliberative forum would be diminished. As Griffit and Ryle state:

8Ibid9Ibid10Canada (House of Commons)v. Vaid[2005]1 SCR 667, at para. 41.


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Parliamentary privilege, even though seldom mentioned in debates, underpins the status and

authority of all Members of Parliament. 11

Without this protection individual Members would be severely handicapped in performing their

parliamentary functions, and the authority of the House itself, in confronting the Executive andas a forum for expressing the anxieties of the citizen, would be correspondingly diminished. 12

Parliamentary privilege, in essence, is essential to the conduct of Parliaments business, as it is to

the maintenance of its authority and independence. At issue is the integrity and autonomy of the

institution itself. While certain rights and immunities, notably those attached to the freedom of

speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist

for their personal benefit. Parliamentary privilege exists rather to protect the Houses themselves

collectively and their members when acting for the benefit of their House, against interference,attack or obstruction

13.

Without parliamentary privileges, parliament could not discharge their functions efficiently and

effectively. These privileges have developed to allow Parliament to proceed with the business of

making legislation and reviewing the activities of the Executive without illegitimate interference.

Parliamentary privileges, therefore, are grounded in the doctrine of necessity. The content and

extent of these privileges have evolved with reference to their necessity. The privileges of

Parliament include those rights, which are absolutely necessary for the execution of its power.

It is important to bear in mind that the purpose of parliamentary privilege is to secure the proper

dignity, efficiency and independence of the legislature and not to protect individuals from due

process. This legal institution is not a personal immunity; it is an occupational immunity, which

is provided to ensure that the duties of representatives may carry out perfectly. This immunity is

not meant to place a Member of Parliament above the law, but to protect him from possible

11R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures,Sweet and Maxwell, 200312CR Munro, Studies in Constitutional Law, London, Butterworth, 198713Seyed Doraid Mousavi Mojab, A Review of Parliamentary Privilege with an Approach to Iranian Legal System,http://www.kentlaw.edu/jicl/articles/spring2005/s2005_seyed_mousavi.pdf.


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groundless proceedings or accusations that may be politically motivated; thus it is not a

discriminatory institution.14

The parliamentary privilege protects the legislative branch from interference by the executive

and judicial branches. The purpose is derived directly from the separation of powers doctrine.The privilege also relieves the parliament and their members from the burden of defending

themselves in court, allowing them to concentrate on their legislative activities.

Another theoretical basis to justify parliamentary privilege is a definite and unquestionable rule

in jurisprudence necessary to override other important interests. The free expression of opinion

and facts in Parliament is so important to our democratic way of life that this freedom (protected

by absolute privilege) overrides any private right or interest of the person who might be

defamed.15 In other words, the privilege protects statements made in circumstances where thepublic interest in securing a free expression of fact or opinion outweighs the private interest of

the person about whom the statements are made.16

THE RELATION BETWEEN JUDICIAL REVIEW AND THE LEGISLATIVE

PROCESS

To safeguard the constitutional holistic order and sustainable development, and even to protect

the human right, the judiciary can review laws enacted by Parliament, and even declare that one

or all laws are null or void. However, such power to deny a majority vote of the law was

challenged in essence, which has been replaced by legislative function. Someone also considers

the impact of the traditional framework of separation of powers.17

Whether or not judicial power should intervene in legislative power, as well as its legitimacy isbased on what has become a hot problem about Constitutional study. Because it is different that

14C.F. Padfield., Law Made Simple, 7th ed., England, Made Simple Books, 198815Ibid16Keenan, Denis, Smith and Keenans English Law, 13thed., England, Longman, 200017Vgl. Hans-Peter Schneider,Verfassungsgerichtsbarkeit und Gewaltenteilung, Neue Juristische Wochenschrift(NJW) 1980, S. 2103.


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historical culture of each country, organized system of the power, as well as the constitutional

validity and so on, the system of unconstitutional review is also different. In America, the

birthplace of Constitutional Review system, the discussions about the problem are especially

heated. One of the most commonly cases affected by criticism and questioning is that Alexander

Bickel put forward an opinion about the unconstitutional review anti-majority plight. The

plight of so-called anti-majority: Democracy refers to the majority principle, which is based on

that the people directly elect members of Parliament; Judicial review that exercised by a minor of

judges. Sufficient to declare that laws or enacted by majority decision is null and void? The

people cannot help feeling doubt.

Modern constitutional democracy Countries emphasize that all public authorities shall be subject

to the supreme law - the Constitution. Therefore, the law passed the majority in Congress, should

also obey constitutional regulation. In other words, the modern constitution includes the

protection of the rights of the people and national organizations of the separation of powers

principle, which be ensured by the superiority of the constitution. The task of constitutional

review is also to protect the rights of the people and to ensure state organs exactly exercise their

powers. Thus the legitimacy of the constitutional review exists in superiority of the Constitution.

Because the court was entitled to declare that the laws enacting the will of the majority were

invalid, someone questioned its anti-democratic majority of the suspects. However, based on the

popular sovereignty on the Constitution, vests in the State organs to exercise the power must

eventually return to the general will of the people.18 In order to achieve that acts of national

power will return to the general national regulatory requirements, some of scholars think, which

according to the Constitution can be developed in three different forms of justification means. 19

First, functional and institutional democratic legitimacy (funktionelle und institutionelle

demokratische Legitimation): This origin from the principle of separation of powers comes from

constitutional law. Constitutional law regulates and provides all different national organs powers,each of which has its function and organization, and their legitimacy directly comes from the

constituents power, such as the Federal Constitutional Court exercise of powers in accordance

with the Constitution, which is a national institution set up by the constitution.

18Eberhard Schmidt-Amann,Verwaltungslegitimation als Rechtsbegriff, AR 116, 1991, S.336.19John H.Ely, Democracy and Distrust, Harvard University Press, 1980


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Second, substantive-objective democratic legitimacy (sachlich-inhaltliche demokratische

Legitimation): through the exercise of national power connecting with the will of the people, the

substantive-objective legitimacy of the exercise of judicial power will be reach by trial

according to law, that is, exercise of judicial power must be subject to the law.

Other scholars offer a participation-oriented representation-reinforcing approach to judicial

review.20The function of Judicial Review would be to ensure the normal operation of

democratic government and to maintain political participation and free-flowing of political

pipeline network. In other words, the function of constitutional review ensures that equally

participates in dispute settlement procedures, rather than select and decide the value of entities,

because under the system of representative democracy, the value should be decided by the

peoples representative. Theoretically, it refutes anti-majority problems raised by Constitutional

Review. The opinion thinks that judicial review can enhance the operation of representative

democracy. Of representative democracy system failure, that is, representative of decision-

making proceedings are not trustworthy, and the court should be involved in correcting. 21

PRIVILEGES: INDIAN CONTEXT

The Constitution of India is a unique document drawn from many sources.22The framers of the

Constitution took tremendous pain to avoid the defects in the prevailing constitutions of the

world and borrowed freely whatever good, element, concept or feature they came across in' the

foreign constitutions. They ransacked all the known constitutions of the world23in their zeal to

frame a good and workable constitution for India. The founding fathers were inspired to draw up

an ideal constitution, devoid of all imperfections, to suit the peculiar needs of the Indian People.

20Ibid21Ibid22C.A.D. Vol. VI23Supra note 5


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Indian Constitution has incorporated many practices and precedents of the British Constitutional

System and the impact of the Mother of Parliaments (British Parliament) is more manifest

pertaining to Parliamentary Privileges which make it obligatory to refer to the century old

conventions established and maintained by the House of Commons of the United Kingdom.

The Constitution of India itself lays down the privileges of the Indian Parliament relating to two

matters, viz. freedom of speech24and publication of speeches and proceedings of Parliament.25

Freedom of speech is a privilege essential to every free council. 26 Incorporation of such a

privilege in the Indian Constitution was considered desirable that the members of the

Legislatures might not be afraid of speaking their inner minds and thoughts freely and frankly in

the Legislative Chambers. No Member of Parliament shall be liable to any proceedings in any

court of law in respect of anything said or any vote given by him in Parliament. Nevertheless, the

Constitution has not given unrestricted license to speak anything within the four walls of

Legislative Chambers. The freedom of speech is subject to the other provisions of the

Constitution and subject to the rules framed by the House under its power to regulate its internal

procedure.27

Both the Houses of the Indian Parliament have framed certain rules and have authorized their

Presiding Officers to apply and enforce them. For example, the rules of the procedure of the Lok

Sabha impose numerous limitations upon the freedom of speech of its members and empower the

speaker to take appropriate action directing the members to withdraw from the House;28 on

ordering his suspension; or ordering the expunction of the offending words from the proceedings

of the House.29

Besides the Constitution imposes another limitation upon the freedom of speech in Parliament

that no discussion shall take place in Parliament with respect to the conduct of any judge of the

Supreme Court or a High Court in the discharge of the duties except upon a motion for

presenting an address to the President praying for the removal of the judge.

30

It is evident that the

24Constitution of India 1950, Article 105 (1)25Constitution of India 1950, Article 105 (2)26Supra note 127Constitution of India 1950, Article 118 (1)28Rules of procedure and conduct of, Rule Business in L. S. (5th Ed.), Rule 3 7329Rules of procedure and conduct of Business in L. S. (5th Ed.), Rule 37430Constitution of India, Article 121


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Members of the Parliament are not given absolute freedom to say anything but their freedom of

speech is hedged with restrictions. Actual experience in India as well as outside has shown that

an ordinary individual has greater freedom, being free from party whips than a member of

Parliament; and the latter has greater freedom outside the House than inside being subject to

rules and standing orders enforced especially in India by over-zealous Presiding Officers.31

REGARDING SPEECH

Article 105(1) guarantees freedom of speech in Parliament subject of course to the rules and

Standing Orders regulating the procedure of Parliament. What makes Article 105(1) effective

and much more than the right of every citizen to free speech guaranteed by Article 19(1)(a), is

the immunity from the process of the courts in respect of anything said in the House. The

privilege is available not only to the Members of Parliament but also, under Article 105(4) of the

Constitution, to persons like the Attorney General of India or Ministers who are not members but

have a right to speak in the House. The stage has been set for fearless participation in the debates

in the House. In order to claim the immunity, what needs to be shown is only that Parliament was

sitting and that its business was being transacted.32

The limitations on the privilege regarding free speech in Parliament are few. One limitation

obviously is that the freedom is subject to the constitutional provisions and the rules andprocedures of Parliament. The rules are those framed under Article 118 of the Constitution.

Under Article 121, Parliament cannot discuss the conduct of Judges of the Supreme Court and of

the Judges of the High Court. Even if there is any violation of these limits it would still be a

matter exclusively for Parliament to deal with and the courts would have no jurisdiction to look

into the matter. In view of Article 122, the courts are also explicitly barred from enquiry into the

validity of any proceeding in Parliament. Another exception is of course that Parliament must be

sitting. The privilege cannot, arguably, be stretched to cases of casual conversation in the House.

A member cannot also claim immunity for any speech that he may make outside the House even

if it is a verbatim reproduction of what he has said inside the House. In a case decided by the

United States Supreme Court evidence had been admitted on the authorship, content and

31K.V. Rao, Parliamentary Democracy of India, World Press Private, 196132Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272


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motivation of a speech made by a member on the floor of the House of Representatives in

pursuance of a conspiracy designed to give assistance in return for compensation. It was

held33that the conspiracy conviction was based on an intensive enquiry of the proceedings of the

House and was, therefore, unsustainable. In England, under Section 13 of the Defamation Act, a

member may waive privilege and contest the proceedings.34In the absence of a similar provision,

it is doubtful if an Indian court could, in the light of the express bar under Article 105(2),

entertain litigation even in a case of waiver of privilege. So, it is evident that subject to very

minor limitations the privilege under Articles 105(1) and (2) with regard to speech in the House

is complete, conclusive and outside the scope of scrutiny or enquiry by other organs of the State.

REGARDING PUBLICATION

The freedom of publication is available to all persons who may publish reports, etc. of the House

or papers under the authority of the House. For the purposes of Articles 105(1) and 105(2), it is

quite immaterial if the publication was meant for circulation among the Members of Parliament

or for a larger audience. The development of the law in this regard owes much to the case of

Stockdale v. Hansard35a book containing defamatory matter was published under the authority

of the House of Commons leading to a suit for damages. The suit was decreed holding that no

privilege is attached to the publication. This led to the framing of the Parliamentary Papers Act,

1840 granting complete privilege to the publications made under the authority of the House.

Articles 105(1) and (2) reflect the march of the English law on the subject.

A word must also be said about the rights of publication in respect of proceedings of the House,

but not under its authority. Such publications obviously do not have the protection of Articles

105(1) and (2). But, an attempt has been made to protect the freedom of the press and thereby

give the public access to the proceedings of the House. The Parliamentary Proceedings

(Protection of Publication) Act, 1956 was repealed during the emergency but re-enacted in 1977

and it covers both publications and broadcasts. Article 361-A was added to the Constitution later

and the protection has since then a much higher status. But, it must be noted that the protection is

33United States v. Thomas F. Johnson, 15 L Ed 2d 681 : 383 US 169 (1966)34Erskine May: Parliamentary Practice (23rd Edn.)35(1839) LJ (NS) QB 294


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only of immunity from court proceedings and not from action from the House itself in case it

initiates proceedings for breach of privilege.

In order to qualify for this immunity from civil and criminal proceedings all that is required is

that the publication or broadcast must be a "substantially true report" of the proceedings in the

House. The immunity is lost only if it is proved that the publication was made with malice or if it

related to the proceedings of any secret meeting of the House. In some ways the privilege is

similar to the one conferred on persons reporting court proceedings by the Fourth Exception to

Section 499 of the Penal Code. The privilege could be successfully claimed even in respect of a

part of the debate which alone the reporter finds newsworthy provided that it is a fair report,

untainted with malice.36

The limits of the privilege with regard to publication can be appreciated with reference to two

cases decided by the Supreme Court. In M.S.M. Sharma v. Sri Krishna Sinha37, action was

initiated for breach of privileges in respect of a publication of a speech made in the House that

had been expunged by the Speaker. In Jatish Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee38 a

member published questions that were disallowed by the Speaker. In both cases, the publications

were found not entitled to any privilege.

REGARDING VOTING

The other privilege expressly conferred by Article 105(2) of the Constitution is the one relating

to the vote by a member in the House. The ramification of having a complete immunity from

court proceedings in respect of the vote in Parliament was felt in JMM case39The Supreme Court

was called upon to decide if the constitutional immunity could be applied to the case of an

alleged bribe given to members for exercising their vote in Parliament. The Court by majority

held that the member, the alleged bribe-taker, could not be proceeded against. But, the bribe-

giver and a member, who had not voted but had merely abstained, were found disentitled to any

36Cook v. Alexander, (1973) 3 WLR 617 : (1973) 3 All ER 1037 (CA)37AIR 1959 SC 39538AIR 1961 SC 61339P.V. Narasimha Rao v. State, (1998) 4 SCC 626


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immunity. The majority were quite unhappy that they had to come to the conclusion that they

did:

"137. We are acutely conscious of the seriousness of the offence that the alleged bribe-takers are

said to have committed. If true, they bartered a most solemn trust committed to them by those

they represented. By reason of the lucre that they received, they enabled a Government to

survive. Even so, they are entitled to the protection that the Constitution plainly affords them.

Our sense of indignation should not lead us to construe the Constitution narrowly, impairing the

guarantee to effective parliamentary participation and debate." 40

Both, the minority and the majority judgments in the case indicate the march of the law in

various countries and the attempts to cut down on the immunity. In particular, reference is found

to the Report of the Royal Commission on Standards in Public Life (chaired by Lord Salmon)

which has stated that "neither the statutory nor the common law applies to the bribery or

attempted bribery of a Member of Parliament in respect of his parliamentary activities" but

"corrupt transactions involving a Member of Parliament in respect of matters that has nothing to

do with the parliamentary activities would be caught by the ordinary criminal law". The report

also notes that investigation into such matters could be too complex, would require special

expertise and be beyond the investigative capacities of the House. A Parliamentary

Commissioner for Standards appointed by the Select Committee of Standards and Privileges canand does go into the propriety of a member's conduct and deals with allegations of corrupt

payment to members. But, the courts in England still believe that the ordinary criminal courts are

best equipped to deal with bribery cases. Buckley, J. in R. v. Greenway41has stated as follows:

"That a Member of Parliament against whom there is a prima facie case of corruption should be

immune from prosecution in the courts of law is to my mind an unacceptable proposition at the

present time. I do not believe it to be the law. The Committee of Privileges is not well equipped

to conduct an enquiry into such a case, nor is it an appropriate or experienced body to pass

sentence. Unless it is to be assumed that it would be prejudiced in his favor, I cannot see that it

would be in the member's own interest for the matter to be dealt with by the Committee. The

40Ibid41"Parliamentary Privilege and the Common Law of Corruption: R. v. Greenway", Public Law, 1998


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courts and legislature have over the years built up a formidable body of law and codes of practice

to achieve fair treatment of suspects and persons ultimately charged and brought to trial. Again,

unless it is to be assumed that his peers would lean in his favour, why should a member be

deprived of a jury and an experienced judge to consider his guilt or innocence and, if appropriate,

sentence? Why should the public be similarly deprived?"

Section 73-A of the Crimes Act, 1914 in Australia and Section 108 of the Criminal Code in

Canada are statutory provisions that make the acceptance of a bribe by parliamentarians, an

offence. The House of Commons, in 1947 and in 1995, has resolved that no member could, for

consideration, reward or fee, raise an issue in the House. Section 14(a) of the Ceylon Bribery

Act, 1954 seeks to punish both the bribe-giver and bribe-taker in case of bribery of judicial

officers and members of either the Senate or the House of Representatives. The provision hasbeen held to prevail over the privilege claim made by the member.42 But, the plain words of

Articles 105(1) and (2), that the majority in JMM case9 found compelled to apply, has left little

room for recognising the changes taking place the world over.

The National Commission for review of the Constitution in its report 43 submitted in 2002 has in

fact recommended that Article 105(2) ought to be amended:

"5.15.6. The Commission recommends that Article 105(2) may be amended to clarify that theimmunity enjoyed by the Members of Parliament under parliamentary privileges does not cover

corrupt acts committed by them in connection with their duties in the House or otherwise.

Corrupt acts would include accepting money or any other valuable consideration to speak and/or

vote in a particular manner. For such acts they would be liable for action under the ordinary law

of the land. It may be further provided that no court will take cognizance of any offence arising

out of a member's action in the House without prior sanction of the Speaker or the Chairman, as

the case may be. Article 194 (2) may also be similarly amended in relation to the Members of

State Legislatures."

Perhaps, one limitation on the privilege to vote can be found in the Constitution (Fifty-second

Amendment) Act, 1985 and the anti-defection rules framed there under. The disobedience of the

42Attorney-General of Ceylon v. De Livera, (1962) 3 All ER 106643Report of the National Commission to Review the Working of the Constitution (Vol.I, March 2002)


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party whip could lead to disqualification of a member. It applies only to voting and not to any

other right of a member like his privilege regarding speech.44

REGARDING STATUTORY LAW

This brings us to Article 105(3) of the Constitution. The provision has been the cause of a great

deal of confusion, throughout. Article 105(3), as originally framed, provided that until the law

relating to parliamentary privilege is codified, the privileges of the House would be the same as

those of the House of Commons that existed at the commencement of the Constitution. In the

Constituent Assembly Debates, Dr. Ambedkar remarked that South Africa has passed a law and

codified the law of privileges. The provision Article 85(3) of the Draft Constitution was passed

with the hope of framing statutory law within a short time-frame.45The criticism even then was

that the provision was vague and that the reference to the law of another country was uncalled

for.46No attempt at codification was made by Parliament or the legislatures. After the

Constitution Forty-second and Forty-fourth Amendment Acts of 1976 and 1978 respectively, the

original Article 105(3) has been substituted. The present Article 105(3) preserves the privileges

existing until the coming into force of the Forty-fourth Amendment Act pending legislation on

the subject. The change is cosmetic and in substance the article remains the same. We thus have

a transitory provision in force for decades.

The reluctance to codify the law of privileges appears to be based on a misconception that such

codification would lead to increased interference by the courts. A former Speaker of the Lok

Sabha has stated the following in the course of an article47:

"It is provided that the privileges of the parliamentarians may be codified. However, on one hand

there is a pressing demand made by the media persons to make a law, providing for the

privileges, on the other hand, Members of Parliament and most of the Presiding Officers have

opposed the move to codify them on the ground that as the judicial interpretation of the law is the

responsibility of none else but the judiciary. If privileges are codified, the matters would be taken

44Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.)45Constituent Assembly Debates, Vol. 1046Constituent Assembly Debates, Vol. 847Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of Constitutional and ParliamentaryStudies, Vol. XXXV, Nos. 1 and 2


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to the courts and the Members of Parliament and the Presiding Officers would be asked to

subject themselves to the jurisdiction of the judiciary and that would affect the equality between

three wings of the Government and ultimately affect the privileges of the parliamentarians to

express their views without fear or favour."

It must be remembered that Article 122 of the Constitution does expressly bar the jurisdiction of

courts in the affairs of the House. The Court has even refused to enquire into the validity of the

passing of a law on the ground that several members were under preventive detention.17But,

parliamentarians appear to be wary that the Court by declaring itself to be the final authority on

the interpretation of the Constitution and the laws would interfere in its functioning. The limits of

parliamentary privilege, particularly in this uncodified scenario have become a matter of law. In

such a situation, it is a moot question if by avoiding codification of the privileges, ascontemplated by the Constitution; greater powers are being retained by Parliament. It does

appear that codification is a distant dream as the first conference of the Chairmen of Committees

of Privileges of Parliament and State Legislatures in India held in 1992, has unanimously

resolved that there should be no codification of privileges.48 In fact, the Constitution Review

Committee has said that privileges are not meant to be privileges against the people or against

the freedom of the press. It has been recommended as follows49:

"5.15.3 ... The Commission recommends that the time has come to define and delimit privilegesdeemed to be necessary for the free and independent functioning of Parliament. It should not be

necessary to run to the 1950 position in the House of Commons every time a question arises as to

what kind of legal protection or immunity a member has in relation to his or her work in the

House."

If a law is made in exercise of power under Article 105(3), it would undoubtedly have to satisfy

the test of constitutionality before the courts. The argument that law made in exercise of this

power would be outside the scope of Article 13 of the Constitution has been repelled by the

Supreme Court.50But, in the present situation, when no law is made but nonetheless privileges

are claimed and exercised by the House under the latter part of Article 105(3) itself, it puts the

48Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 149M.N. Kaul & S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.)50Special Reference No. 1 of 1964, (1965) 1 SCR 413
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fundamental rights of the citizen under peril and leads to disputes and judicial adjudication. The

courts are forced to enter an arena that they would normally avoid.

Outside the scope of these privileges, the Constitution itself prefers not to describe other

privileges but simply say - "In other respect, 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

the House of Commons of Parliament of the United Kingdom, and its members and committees,

at the commencement of the Constitution.51

The Parliament and State Legislatures have not done anything so far to define or codify their

privileges as stipulated in the Constitution but are claiming all such privileges of the House of

Commons which are nowhere codified and are a part of the Common Law of England.

The words 'powers, privileges and immunities' occurring in this article of the Constitution have

evoked keen controversy in the country since the inception of the Constitution. It has been

interpreted with varying meanings by the various Legislatures and Courts in India. This perhaps

is one of the most controversial cause in the Constitution which seeks to link and intend to place

on parity the privileges and immunities available to the members of Parliaments in the two

countries. Such an analogy for linking the powers, privileges and immunities of the House of

Commons with the Indian Legislatures is fraught with danger and it may even undermine the

very foundation of our Constitutional System. It is crystal clear that the Political Structure of

India does not wholly correspond to the Parliamentary Democracy practiced in Britain and the

Governmental systems of the two countries are poles apart. Parliamentary privileges should be

analyzed in two countries keeping always in view the diversities existing in the respective

countries. One of the cardinal differences which apparently come to our notice is the very

foundation of the Constitutional edifice in U.K. and India.

51Constitution of India, Article 105(3)


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THE CONTROVERSY

In India the democratic values enshrined in the constitution and the guaranteed fundamental

rights of citizens have on several occasions clashed with the parliamentary privileges. One such

instance is in M. S. Sharma v. Shrikrishna Sinha52 the question was whether publication of

expunged portions of Parliamentary proceedings amounted to contempt. The issue directly

before the Supreme Court was whether what was the impact of Article 19(1) (a) and Article 21

on the provisions of Article 194(3). It was held that if a law prescribing the powers privileges,

and immunities is enacted, either by Parliament or State legislature, that law would be subject toArticle 13 of the Constitution and would be void to the extent it contravened the fundamental

rights contained in Part III.

PARLIAMENT SOVEREIGNTY AND CONSTITUTIONAL DEMOCRACY

Though we have adopted Parliamentary System of Government, according to English model our

Parliament is not a sovereign body just like the English Parliament. The most outstanding feature

of the British system of Government, is the sovereignty of Parliament. Parliament under the

English Constitution has the right to make and un-make any law whatever, and further no person

or body is recognized by the law of England as having a right to override and set aside the

legislation of Parliament.53The Constitution has assigned no limits to the authority of Parliament

over all matters and persons within its jurisdiction. A law may be unjust and contrary to the

principle of sound government: But Parliament is not controlled in its discretion and when it errs,

its errors can be corrected only by itself.54 This fact led De-Lolme to remark that the British

Parliament can do everything but make a man a woman and woman a man.

521959 AIR 39553Dicey, A.V. Introduction to law of Constitution, 194854D.D.Basu, Introduction to the Constitution of India (3rd Ed) 1964


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But in India we have completely rejected this concept and have not given blank cheque to

Parliament as we felt that "Assemblies can be no less tyrannical and no less unscrupulous than

individuals."55Ours is a constitutional democracy which very clearly embodies the principles of

limited government Political Institutions are always the product of the peoples' genius, customs,

habits and its history. The framers of the Constitution were fully aware of the past history of

India and particularly with the rule of the British Colonial Government which was the very

definition of tyranny. The new Constitution was to be modeled in a different pattern assuring the

citizens the fruits of liberation, which paid heavy price for their freedom. Parliament in India

enjoys certain powers and it cannot claim any supremacy over the citizens who are its masters.

Indian Parliament is the creature of the Constitution of India and its powers, right, privileges and

obligations have to be found in the relevant articles of the Constitution. It is not a sovereign

body, un-controlled with un-limited powers. The Constitution has conferred on the IndianParliament power to make laws in respect of matter specified in the appropriate places and

schedules, and curtailed its rights and powers under certain other articles and in particular by the

articles dealing with Fundamental Rights.56The Constitution did not envisage that the privileges

of the Legislatures in India shall be "same" as those of the House of Commons. This logic of

equating them is very unsound. Even if we interpret broadly, privileges of the Legislatures are

subject to the scrutiny of the courts, since the "privileges granted are those of the House of

Commons," and they need to be ascertained. Secondly privileges existing at the time of

commencement of the Constitution are relevant and have to be determined by the courts.

Although there are certain decided cases which seeks to lay down general principles governing

the parliamentary privileges in England but it looks very odd and curious to bind the courts in

India with the views of Courts in England in those matter. It can thus do whatever it likes except

what is physically and naturally impossible. Every act of Parliament is constitutional and the

courts have simply to apply law was passed by Parliament. Thus the consequence of the

supremacy of Parliament is that the English Courts have no power of judicial review. It cannot

declare any law as constitutional or void.

55M. G. Gupta: Aspects of Indian Constitution, 2nd edition 196456Supra note 54


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FUNDAMENTAL RIGHTS AND PARLIAMENTARY PRIVILEGES

The Constitution of India incorporates most elaborate declaration of human rights and opens a

new saga of freedom to the Indians who suffered under the British Colonial Rule over three

centuries. These rights include all the basic liberties such as freedom of speech, movement and

association, equality before law and equal protection of laws, freedom of religious belief and

cultural and educational freedoms.57

The Founding Fathers including those Fundamental Rights have adhered to the American

concept of 'limited government.' Fundamental Rights place limits on state action and

categorically lay down the principle that these rights are available against the state i.e. no organ

of the state - executive, legislature and judiciary can act in contravention of such rights. The

doctrine of Fundamental Rights, implying that government exists for the sake of individual

whose freedom and happiness are considerations of paramount importance seems to be firmly

laid down in our Constitution. These rights are fundamental in the sense that they have been

incorporated in the fundamental law of the land - a law which can be changed according to a

special procedure contained in the Constitution itself.

Indian Constitution guarantees certain rights and the people cannot claim anything beyond them.

They are not absolute but the Constitution itself imposes certain restrictions on them. They are

subject to the interest of the people and safety of the state. In some cases, limitations have been

laid down in the Constitution itself. In other respects, Parliament has been given the power to

impose further restrictions. Thus it is evident that the rights are changeable arid can be modified

by Parliament subject to provisions of the Constitution. But who has to judge whether a citizen

has over-stopped the limits so as to endanger the safety of the state; whether Parliament by

making a law has exceeded its legislative competence; whether the law in question conforms tocertain fundamental principles relating to the rights, and whether the Law is good. On these

issues even the Constituent Assembly was found in two difficult situations. One was to give the

judiciary the authority to sit in judgement over the will of the Legislature and to question the law

57Chapter III of Indian Constitution, 1950 Articles 13 to 35


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made by it on the ground that it was not good. The other was that the Legislature might be

entrusted not to make bad laws.

On the one hand, there is the possibility of a Legislature packed by party men making laws

which may abrogate or violate what may be regarded as certain basic principles affecting the lifeand liberty of individual. On the other hand, it is difficult to see how five or six gentlemen sitting

in the Supreme Court can examine laws made by the Legislature, and guided by their own

individual conscience, bias, prejudice, social and intellectual climate and experience be trusted to

determine which law is good and which law is bad58.

Are Parliamentary privileges more fundamental than Fundamental Rights? The answer is in the

negative. The Supreme Court in Special Reference No. 1 of 1964,59ruled that the fundamental

rights guaranteed under Article 32 cannot be overridden by parliamentary privileges. Thiscontradiction has raised a piquant situation where, as Seervai60has succinctly pointed out, one

privilege (right to prohibit publication) is not overridden by one fundamental right (Article

19(1)(a)), on the other hand another privilege (right of committal) is subject to another

fundamental right (Article 32).1 Thus the issue of fundamental rights vis-a-vis parliamentary

privileges has raised many controversial debates before us as to which one will prevail over

another and has concomitantly raised the question of codification of parliamentary privileges.

Fundamental Rights are the basic rights which form a part of the Supreme Constitution and the

privileges which are to be enjoyed by the representatives of the Sovereign people have to run

counter to them. The Constitution has assigned the Judiciary twin task of constructing the

provision of the Constitution and of safeguarding the Fundamental Rights of the citizens. The

privileges and immunities of Parliament and of its members constitute an important part of their

inherent rights under the Constitution and are designed to enable them to discharge their

functions as representatives of the people. They are however meant for that purpose and nothing

more.61 They are all citizens first and legislators later and if they themselves, in their self-

interest, begin to attack the basic human right of citizens, it is nothing short of totalitarianism.

The essence of our constitutional system is the establishment of just social order and the creation

58Supra note 5459Article 14 and 32 of Indian Constitution, 195060Supra note 5561Ram Singh V. The state of Delhi and Another (1951) S. C. R. 451


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of Welfare Society upholding the dignity of the individual and the honor of the nation. All the

organs of the State have to work in harmony and in collaboration to realize all these lofty ideals

to which the nation is dedicated

THE FRENCH MODEL

In the French system members enjoy the critical immunity of freedom of speech, but the

expression of the immunity is different from the British model. There are differences in respect

of the immunity of members persons and significantly in respect of the ability to punish

contempt.

FREEDOM OF SPEECH

Members of the French Parliament have long been immune from action on account of their

statements in Parliament. The relevant term is best translated into English in this context as non-

accountability.62The Clerk of the French Senate has observed that this immunity was a legacy

of a tradition created over past centuries by the British Parliament. 63The effect of the immunity

is that members cannot be prosecuted or tried elsewhere on account of their statements or votes

in Parliament.64 It has been set out in successive French constitutions, Article 26 of the 1958

Constitution providing: No Member of Parliament may be prosecuted, searched for, detained or

be subject to judgment on the basis of opinions of opinions expressed or votes cast by him in the

exercise of his duties.65 Courts have been required to determine issues such as whether the

repetition outside parliament by members, or by broadcast, of remarks made in Parliament are

protected by force of this provision (they have been found not to be protected).66It is notable that

the form of words No Member may be prosecuted is in contrast to the Bill of Rights with

62Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments(ASGP) meeting 17-19, October, 2005,http://www.asgp.info/Resources/Data/Documents/MSUMEOMVPXKTACUJDEWNDNORPOBTYP.pdf.63Ibid64Ibid65Ibid66Ibid


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its reference to the activity proceedings in Parliament. This may mean that questions such as

whether other persons (for example committee witnesses) were covered by the immunity were

more open there. In the event, however, court decisions have recognized the protection of

Witnesses.67

FREEDOM FROM ARREST

In France the immunity of the members person has been recognized since the formation of the

National Assembly, on 23 June, 1789 the Assembly declaring the person of each deputy shall

be inviolable.68 The justification of such a provision is the protection of deputies from actions

by the crown/executive.69Thinking on the extent and application of the immunity has apparently

developed considerably, in the last several years particularly with regard to the interests (and

tolerance) of others.70 One constant element has remained: Parliament has had a role in the

application of the immunity. In essence, and other than in criminal cases, where a member is

captured red-handed or in respect of final sentencing, parliamentary approval is required for the

arrest or detention of a member.71The approval is given by the Bureau (Managing Group) of the

House. One advantage of this is that confidentiality may be maintained, at least for a period.

An indication of the political and parliamentary sensitivity of these matters is given in the

statement of one Senator: To gnaw at inviolability is to hand over parliamentarians to the

vengeance and arbitrary decisions of those who, with complete impunity, profit from the

weakness of a state terrorized by excessive media coverage in order to set themselves up as a

power independent of the law itself and to launch a concerted attack on the authorities and

principles of the Republic. One can even bar parliamentarians from attending sittings on the

grounds that they have to answer judges summons.72

67Marc Van der Hulst, The Parliamentary Mandate, IPU, 200068Ibid69Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments(ASGP) meeting, 17-19 October 2005,http://www.asgp.info/Resources/Data/Documents/MSUMEOMVPXKTACUJDEWNDNORPOBTYP.pdf.70Ibid71Ibid72Ibid


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PUNISHMENT FOR OFFENCES

Despite their authority in matters such as the immunity of members persons, the houses of the

French Parliament have never enjoyed the broad capacity to punish offences (contempt)

possessed by the House of Commons.73

CONCLUSION

Certainty of privileges is the requirement of the day. The past privileges of the House of

Commons cannot be allowed to control the Indian present and future. But there seems to be two

great handicaps associated with the codification of privileges. This was brought out by former

Speaker of parliament, Mavalankar74at a conference of presiding officers. According to him:

1) The legislative will codify only those privileges that are acceptable to the executive

government of the day which would command majority in the legislature. But Privileges should

not be with reference to this party or that party which is ruling but should be with reference to all

the members. The net result would be a curtailment of privileges.

2) Codification will crystallize privileges, and there will be no scope to widen or change the

same by interpretation of privileges as they exist in the British Parliament. Today there is an

opportunity of adapting the principles, on which the privileges exist in U.K., to conditions in

India.

But keeping in view the larger public interest and democratic values, the anticipation of the

curtailment of few privileges on its face are too weak and fragile to be sustained.

73Supra note 6774Shubhankar Dam, Presidential Legislation In India: the Law and Practices of Ordinances , Cambridge UniversityPress, 2014


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BIBLIOGRAPHY

CASES

Attorney-General of Ceylon v. De Livera .................................................................................... 12

Canada (House of Commons) v. Vaid ............................................................................................ 3

Cook v. Alexander ........................................................................................................................ 10

Indira Nehru Gandhi v. Raj Narain ............................................................................................... 15

P.V. Narasimha Rao v. State ......................................................................................................... 11

R. v. Greenway ............................................................................................................................. 12

Ram Singh V. The State of Delhi and Another ............................................................................ 20

Special Reference No. 1 of 1964, (1965) 1 SCR 413 ................................................................... 15

Tej Kiran Jain v. N. Sanjiva Reddy, ............................................................................................... 9

United States v. Thomas F. Johnson ............................................................................................... 9

STATUTE

Constitution of India 1950 .............................................................................................................. 7

BOOKS

Constituent Assembly Debates ..................................................................................................... 13

D.D.Basu, Introduction to the Constitution of India (3rd Ed) 1964 ............................................. 17

Dicey, A.V. Introduction to law of Constitution, 1948 ................................................................ 17

Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues ...................... 2

K.V. Rao, Parliamentary Democracy of India, World Press Private, 1961 .................................... 8

M. G. Gupta: Aspects of Indian Constitution, 2nd edition 1964 .................................................. 17

M.N. Kaul & S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.) ........................... 15

Seyed Doraid Mousavi Mojab, A Review of Parliamentary Privilege with an Approach to Iranian

Legal System, .............................................................................................................................. 4

14


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Shubhankar Dam, Presidential Legislation In India: the Law and Practices of Ordinances ,

Cambridge University Press, 2014 ............................................................................................ 22

Vgl. Hans-Peter Schneider,Verfassungsgerichtsbarkeit und Gewaltenteilung, Neue Juristische

Wochenschrift (NJW) 1980, S. 2103. ......................................................................................... 5

OTHER AUTHORITIES

THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) ...................... 1

RULES

Rules of procedure and conduct of, Rule Business in Lok Sabha (5th Ed.), .................................. 8

TREATISES

E May, Parliamentary Practice, 16th edn. (London, Butterworth) ................................................. 1

Anirudh Prasad, "Jurisprudential Study of Legislative Privileges in India", Journal of Bar

Council of India, Vol. 16 (3&4): 1989 ........................................................................................ 1

C.F. Padfield., Law Made Simple, 7th ed., England, Made Simple Books, 1988 .......................... 4

CR Munro, Studies in Constitutional Law, London, Butterworth, 1987 ........................................ 3

D.D.Basu: Commentary on the Constitution of India ..................................................................... 2

Keenan, Denis, Smith and Keenans English Law, 13thed., England, Longman, 2000 ................. 5

M. G. Gupta: Some Aspects of Indian Constitution (2nd Ed.) ....................................................... 2Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General

of Parliaments (ASGP) meeting 17-19, October, 2005 ............................................................. 20

Pachauri, The Law of Parliamentary Privileges in UK and in India, 1stedn., (N.M. Tripathi Pvt.

Ltd., Bombay, 1971 ..................................................................................................................... 1

R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and

Procedures, .................................................................................................................................. 3

Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of Constitutional

and Parliamentary Studies, Vol. XXXV, Nos. 1 and 2

Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.) 13


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REGULATIONS

C.A.D. Vol. VI ................................................................................................................................ 7

REPORT

Report of the National Commission to Review the Working of the Constitution (Vol.I, March

2002).......................................................................................................................................... 13

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