The term privilege can be defined as an exemption, special right, advantage or immunity to a particular person or group of persons in a layperson’s terms. In law, privilege is an advantage enjoyed by a person or an association where people are exempted from some duty, burden, attendance or liability. Parliamentary Privileges are certain rights and immunity enjoyed by the members of the parliament and legislative assemblies individually and collectively, till the time they retain their position as a member of the legislature. These privileges are defined under Article 105 of the Indian Constitution and due to these privileges, members are exempted from any civil or criminal liability for any statement made or act performed by them in their course of tenure. These privileges are called off as soon as the members complete their tenure in the legislative body (Houses of Parliament at the Centre & Legislative Assemblies in the States).

Background

The concept of parliamentary privileges has been borrowed from Britain’s House Of Commons. It was introduced with the objective to uphold the supremacy of the parliament and its members over other institutions and common citizens. However in India, the primary objective of these privileges is to safeguard the freedom, dignity and authority of the legislature. These privileges are believed to allow the members to exercise their duties smoothly without any hindrances. Such freedom is considered the essence of the parliamentary system as the people’s representatives are able to express themselves without any fear of legal consequences against them. Parliamentary Privileges provide absolute powers to the legislators in India, where they judge their own proceedings, regulate them, decide the actions of breach and its punishment without any interference from the judiciary.

Evolution of the Concept

Though stipulated in Article 105 and 194 of the Indian Constitution, these provisions were added as temporary measures by the makers of the Constitution and the Parliament was expected to codify the provisions for the same, though the latter was never deemed necessary.

The initial goal of the privileges was to encourage the members of parliament to voice their opinions as law makers, without any hesitation but over the years these have become a tool of harassment of the press and ordinary citizens. As they are uncodified, the extent or limitation of such privileges is not defined. Over the years, the Supreme Court of India has tried to define their extent and limitations and how they should be interpreted in the light of fundamental rights of the citizens.

In the case of MSM Sharma v. S.K. Sinha (1959) the Supreme Court held that where there is conflict between the parliamentary privileges and the fundamental rights, the principle of harmonious construction shall be applied. Court also held that since Article 194 is a special provision, it will prevail over Article 19 of Constitution but Article 21 will have an overriding effect on parliamentary privileges. Similarly it was held in the case of Raja Ram Pal v. Hon’ble Lok sabha Speaker (2007) that Article 20 and 21 will prevail over parliamentary privileges.

In 1965 a controversial issue came before the Supreme court in Re Keshav Singh’s case which was to determine, whether the legislature is the sole and exclusive judge of its privileges and whether it is competent to punish a person for its contempt taking place outside of the legislature. In this case Keshav singh was charged for contempt of the Uttar Pradesh State Assembly and a petition was filed in the Allahabad HC alleging that the detention was illegal, wherein the HC granted bail to the petitioner. In a power tussle between the Judiciary and the Legislature, the assembly summoned the two HC judges for contempt of the house. Finally the Supreme Court held that the HC judges did not commit contempt and the legislature is not competent to initiate proceedings against the judges.

In 2015, in the case of Algaapuram R Mohanraj v Tamil Nadu Legislative Assembly six members of the DMDK party were suspended from the assembly for breach of parliamentary privileges. The Supreme Court held that the violation of right to equality under Article 14, can be a ground for judicial review of internal proceedings of the legislature.

Conflicts & Concerns

The freedom of speech given to the members of parliament under the ambit of parliamentary privileges is almost absolute. This means that though the freedom of speech which citizens enjoy in the form of fundamental rights is subjected to reasonable restrictions under Article 19(2) Constitution, MPs’ freedom of speech is not subjected to any such restrictions due to the immunity under Article 105. It may happen that a citizen gets defamed by the speech of an MP during the proceedings but due to immunity provisions, the said citizen does not have any option other than raising the issue before a parliamentary committee and there is a high probability of these proceedings being prejudiced against the ordinary citizens. In this regard, it was held in the case of Kalpana Mehta and ors. v. Union of India and ors. by the constitutional bench of the Supreme Court that the parliamentary reports can neither be challenged nor their validity be questioned in any court.

Another issue with the parliamentary privileges is the fact that they are not defined clearly under Article 105 of Indian Constitution. The Supreme Court in P.V. Narsimha Rao v. State interpreted the expression “in respect of” and held that the privileges even extend to the act of taking bribes by any member for voting in the parliament. Due to such a wide approach, the parliamentarians can claim immunity against any act which is in conflict with the public interest or is contrary to the essence of democracy as the representatives of the people are “privileged” to put their own interests above that of the people.

IAnother controversial aspect of the provisions is that though it is the right of the people to know about the proceedings of the Parliament and it’s the responsibility of the media to circulate such information, parliamentary privileges put unnecessary restrictions upon the freedom of press. The original provisions allow the publication of honest and unbiased reporting of parliamentary proceedings. This was meant to avoid misinformation of facts, but over the years, it has become a tool for harassment of reporters if their opinions are against that of the government in power. In 2017 two journalists were held guilty of publishing an article defaming the speaker and MLAs of the Karnataka Assembly and were sentenced to one year imprisonment. These undefined powers of the legislature, thus make the misuse of privileges easy and bring out their conflict with the fundamental rights of citizens.

Reclaiming Citizen Rights through Reasonable Change

In India the vast powers given to the members of the Parliament and State Assemblies in the form of parliamentary privileges, have done more harm than good to the efficiency and working of the legislature. It is argued that these privileges have become a tool for getting immunity against charges of bribery, defamation or for curbing the freedom of journalists publishing independent opinions that question or challenge parliamentary proceedings. While lack of any reasonable exceptions wrongly allowed the legislature to play the judge in its own case, no codification of the privileges provided superior powers to the members with no scope to check the abuse of such power. Codifying these privileges will bring them under the purview of the judiciary and will limit the scope for misuse of these powers.

The procedure of the trial by parliamentary committee should be defined specifically, to ensure clarity on the procedural questions. Additionally, individuals who feel that they have been unfairly targeted in the name of parliamentary privileges, should have the right to reply to the evidence provided to the committee against them. It is also important to demarcate the distinction between these privileges and the fundamental rights, so that the former don’t contradict the latter under any circumstances. Since the legislature exists for the well being of the citizens, there is no reason for it to undermine citizens’ rights. The legislators are expected to ensure accountability and transparency in their conduct and role as our representatives and their powers should be validated only as far as they protect our rights to question and know legislative proceedings. Therefore we must revisit the idea and concept of parliamentary privileges and codify them to maintain the dignity of the democracy as nobody should be above the people that make or break legislative bodies.

By Dharmendra Kumar Lambha & Mrigakshi Tandon, Research Associates, Policy