Introduction

Parliamentary privileges are defined in Article 105 of the Indian Constitution.

The members of Parliament are exempted from any civil or criminal liability
for any statement made or act done in the course of their duties. The
privileges are claimed only when the person is a member of the house. As
soon as he ends to be a member, the privileges are said to be called off. The
privileges given to the members are necessary for exercising constitutional
functions. These privileges are essential so that the proceedings and
functions can be made in a disciplined and undisturbed manner.

The privileges individually enjoyed by the

members are

Freedom of speech in parliament

The members of the parliament have been vested with the freedom of
speech and expression. As the very essence of our parliamentary democracy
is a free and fearless discussion, anything said by them expressing their
views and thoughts are exempted from any liability and cannot be tried in
the court of law.
Sir John Eliot’s Case- The House of Lords recognised that the court should
never have assumed jurisdiction over the charge of seditious speeches,
which was “fully answered by the plea of privilege” and reversed the decision
of Court of King’s bench in which they have convicted Sir John for delivering
a seditious speech in House of Common.

The freedom of speech and expression guaranteed to a citizen under Article

19(2) is different from the freedom of speech and expression provided to a
member of the parliament. It has been guaranteed under Article 105(1) of
the Indian constitution. But the freedom is subject to rules and orders which
regulates the proceedings of the parliament.

This right is given even to non-members who have a right to speak in the
house. Example, attorney general of India. So that, there is fearless
participation of the members in the debate and every member can put
forward his thought without any fear or favour.

Some limitations are also present which should be followed in order to

claim immunity

 Freedom of speech should be in accordance with the constitutional

provisions and subject to rules and procedures of the parliament,
stated under Article 118 of the Constitution.
 Under Article 121 of the Constitution, the members of the
parliament are restricted from discussing the conduct of the judges
of the Supreme Court and the High Court. But, even if this happens,
it is the matter of the parliament and the court cannot interfere.
 No privilege and immunity can be claimed by the member for
anything which is said outside the proceedings of the house.

Freedom from arrest

The members enjoy freedom from arrest in any civil case 40 days before and
after the adjournment of the house and also when the house is in session. No
member can be arrested from the limits of the parliament without the
permission of the house to which he/she belongs so that there is no
hindrance in performing their duties.

If the detention of any members of the parliament is made, the chairman or

the speaker should be informed by the concerned authority, the reason for
the arrest. But, a member can be arrested outside the limits of the house on
criminal charges against him under The Preventive Detention act, The
Essential Services Maintenance Act (ESMA), The National Security Act (NSA)
or any such act.

Freedom from appearing as a witness

The members of the parliament enjoy special privileges and are exempted
from attending court as a witness. They are given complete liberty to attend
the house and perform their duties without any interference from the court.

Power to make rules of procedure

Under Art. 118 Each House of Parliament has the power to make rules and
regulates its proceeding and conduct of its business. Both Houses had
enacted their rule book which is known as Rules of Procedure and Conduct of
business in Lok Sabha and Rules of Procedure and Conduct of Business in the
Council of States respectively.

Privileges enjoyed by the members collectively as

part of parliament

Right to prohibit the publication of proceedings

As stated in Article 105(2) of the Constitution, no person shall be held liable

for publishing any reports, discussions etc. of the house under the authority
of the member of the house. For paramount and national importance, it is
essential that the proceedings should be communicated to the public to
aware them about what is going on in the parliament.
But, any partial report of detached part of proceedings or any publication
made with malice intention is disentitled for the protection. Protection is only
granted if it reflects the true proceedings of the house. If any expunged
proceedings are published or any misrepresentation or misreporting is found,
it is held to be the breach of the privilege and contempt of the house.

Right to exclude strangers

The members of the house have the power and right to exclude strangers
who are not members of the house from the proceedings. This right is very
essential for securing free and fair discussion in the house. If any breach is
reported then the punishment in the form of admonition, reprimand, or
imprisonment can be given.

The right to punish members and outsiders for breach of its

privileges

The Indian Parliament has the power to punish any person whether strangers
or any member of the house for any breach or contempt of the house. When
any breach is committed by the member of the house, he/she is expelled
from the house.

This right has been defined as ‘keystone of parliamentary privilege’ because,

without this power, the house can suffer contempt and breach and is very
necessary to safeguard its authority and discharge its functions. This power
has also been upheld by the judiciary in most of the cases. The house can
put in custody any person or member for contempt till the period the house
is in session.

The right to regulate the internal affairs of the house

Each house has a right to regulate its proceedings in the way it deems fit and
proper. Each house has its own jurisdiction over the house and no authority
from the other house can interfere in regulation of its internal proceedings.
Under Article 118 of the Constitution, the house have been empowered to
conduct its regulation for proceedings and cannot be challenged in the court
of law on the ground that the house is not in accordance with the rules made
under Article 118. The Supreme Court has also held that this is general
provision and the rule is not binding upon the house. They can deviate or
change the rule anytime accordingly.

Punishments prescribed for breach of privileges

or contempt of the house
1. Imprisonment – If the breach committed is of a grave nature the,
punishment can be given in the form of the imprisonment of any
member or person.
2. Imposing fine – If in the view of the parliament, the breach or
contempt committed is of economic offence and any pecuniary gain
has been made from the breach then, the parliament can impose
fine on the person.
3. Prosecuting the offenders – The parliament can also prosecute the
one committing the breach.
4. Punishment given to its own members – If any contempt is
committed by the members of the parliament then, he is to be
punished by the house itself which could also result in the
suspension of the member from the house.

What constitutes parliamentary breach or

contempt of the house?
There is no codification to clearly state that what action constitutes a breach
and what punishment it entails. Although, there are various acts which are
treated by the house as the contempt. It is generally based on the actions
which tend to obstruct the proceedings of the house and creates a
disturbance for the members. Some of them are briefly discussed.

Giving any misleading statement in the house

The acts which are done solely with the purpose to mislead are considered as
the contempt of the house. If the statement is made by a person who
believes the information to be true then, there is no breach involved. It has
to be proved that the statement was made with an intention to mislead the
house.

Disturbance by the outsiders

Any disruption created by shouting slogans or throwing leaflets etc. with the
purpose of disturbing the proceedings of the court is regarded as a major
contempt by the house. The person is imprisoned by the house for a
specified period of time or a warning is given depending on the seriousness
of the case.

Any kind of assault on the members

Here, the privilege is available when the member is performing his duties. An
assault done by any person on the member of the parliament in the course of
performing his duties is treated as contempt of the house.

Writings or speeches about the character of the member

any speech published or libel made against the character of the member is
regarded as the contempt of the house. These are regarded to be necessary
because it affects the performance and function of the member by reducing
the respect for him.

So, clearly, any attack on the privilege of the members by any means is
considered as a breach of the privilege and the parliament can take action
regarding the same.

Freedom of press and the parliamentary

privileges
The parliamentary privileges restrict the freedom of the press, which is a
fundamental right. Caution to a great extent has to be taken by the press
while publishing any report of the proceedings of the parliament or the
conduct of any member. There are instances where the press can be held
liable for the contempt of the house

1. Publishing any matter concerning the character of any member of

the parliament
2. Any pre-mature publication of the proceedings
3. Misreporting or misrepresenting the proceeding of the house
4. Publishing the expunged portion of the proceedings

In spite of the fact that the freedom of the press is subject to the
parliamentary privileges, certain enactments have been made for the
protection of the freedom of the press. If the fundamental right is being
violated, there is no meaning of democracy. The freedom of the press has to
be protected because we need to be informed about the acts of our
representatives. Parliamentary Proceedings (protection of the publication)
Act, 1977 protects the rights of the press under certain given circumstances

1. The reports of the proceedings are substantially true.

2. The report is made without malice.
3. The report is made for public good.
4. The report should not constitute any secret meeting of the house.

Codification of the parliamentary privileges

Our Indian parliament enjoys supreme powers as being a member of the
parliament. There is also misuse of the privileges given to them because they
do not have many restriction on the rights. They have the power to be the
judge of their own proceedings, regulate their proceedings, what constitutes
the breach and what punishment should be given for the breach, are solely
decided by them.
The power vested in them is too wide as compared to the fundamental rights
vested in the citizens. With no codification of the privileges, they have gained
an undefined power because there is no expressed provision to state the
limitations on their powers. The privilege from any civil arrest 40 days before
and after the session and during the session results that they are exempted
from arrest for even more than 365 days. No comprehensive law has been till
date enacted by the parliament for the codification of the parliamentary
privileges.

It is mostly resisted by the members because then it will be subject to the

fundamental rights and would be in the purview of judicial review. Justice
M.N. Venkatachaliah heading the Constitution Review Commission also
recommended to define and delimit the privileges for the free and
independent functioning of the legislature. This is based on the apprehension
that codification will involve interference of the court as the matters would be
presented in the court of law. Non-codification of privileges has led to greater
powers being enjoyed by the members. But, now the time has come to codify
and define the privileges and actions must be taken so that there is smooth
functioning of the parliament without any conflict.

Judicial review of the parliamentary privileges

The Indian judiciary has been vested with the responsibility of the protection
of the fundamental rights. Parliament members claim absolute sovereignty
over their powers and in any case does not want the judiciary to interfere.
But, the judiciary is regarded as the guardian of our Constitution and it
cannot sit quietly if any fundamental right of a citizen is violated due to
privileges or when there is an escape from any criminal liability.

The judiciary has to take a stand on the wrongs committed by the members
who are taking the shelter of the privileges. The Supreme Court in Keshav
Singh’s case observed that the privileges conferred on the members are
subject to the fundamental rights.
The Supreme Court has also held that any conflict arising between the
privileges and the fundamental rights would be resolved by adopting
harmonious construction. The judiciary is very well aware of the fact that it
does not have jurisdiction over parliamentary matters but it is necessary for
the society that any violation should be resolved by the court as it deems fit.

Parliamentary privileges and the principle of

natural justice
In a recent judgment by the Supreme Court judges in the case of Algaapural
R. Mohanraj v Tamil Nadu Legislative Assembly, it was held that the principle
of the natural justice cannot be violated by the privilege committee.

Facts of the case

On 19-02-2015, some members of the Tamil Nadu Legislative Assembly was

suspended on the ground of unruly conduct. In furtherance of this, a
privilege committee was formed to inquire about the conduct of the members
and further proceedings related to breach of privilege. It was found and
recommended by the take necessary action against six members for the
breach of privilege.

By a resolution dated 31-03-2015, the members were suspended for a period

of ten days for the next session. Further it was extended to cutting of their
salaries and giving any other benefit till the suspension period. A writ petition
was filed by the members in the Supreme Court under Article 32 of the
Constitution.

Contentions raised by the members

The contention was raised by the petitioners that their fundamental rights
under Article 19(1)(a), 19(1)(g), 14 and 21 of the Constitution have been
violated by the said resolution.

Judgment by the court

The court rejected the contention of the petitioners that the resolution
violated Article 19(1)(a) and 19(1)(g). It further accepted the contention that
the rights was violated under Article 14 of the Constitution. The court
observed that the video recording which showed the act of the members
amounting to the breach was not presented before the petitioners. If it would
have been presented then they might had the chance to explain their
conduct. It was further directed by the court to restore the salary and other
benefits of the petitioner.