The Parliament – Parliamentary privileges -11

PARLIAMENTARY PRIVILEGES

Meaning

Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of

Parliament, their committees and their members. They are necessary in order to secure the independence and effectiveness of their actions. Without these privileges, the Houses can neither maintain their authority, dignity and honour nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities.

The Constitution has also extended the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the attorney general of India and Union ministers. It must be clarified here that the parliamentary privileges do not extend to the president who is also an integral part of the Parliament.

Classification

Parliamentary privileges can be classified into two broad categories:

  1. those that are enjoyed by each House of Parliament collectively, and
  2. those that are enjoyed by the members individually.

Collective Privileges The privileges belonging to each House of Parliament collectively are:

  1. In has the right to publish its reports, debates and proceedings and also the right to prohibit others from publishing the same. The 44th Amendment Act of 1978 restored the freedom of the press to publish true reports of parliamentary proceedings without prior permission of the House. But this is not applicable in the case of a secret sitting of the House.
  2. It can exclude strangers from its proceedings and hold secret sittings to discuss some important matters.
  3. It can make rules to regulate its own procedure and the conduct of its business and to adjudicate upon such matters.
  4. It can punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion, in case of members).
  5. It has the right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
  6. It can institute inquiries and order the attendance of witnesses and send for relevant papers and records.
  7. The courts are prohibited to inquire into the proceedings of a House or its committees.
  8. No person (either a member or outsider) can be arrested, and no legal process (civil or

criminal) can be served within the precints of the House without the permission of the presiding officer.

Individual Privileges The privileges belonging to the members individually are:

  1. They cannot be arrested during the session of Parliament and 40 days before the beginning and

40 days after the end of a session. This privilege is available only in civil cases and not in

criminal cases or preventive detention cases.

  1. They have freedom of speech in Parliament. No member is liable to any proceedings in any court for anything said or any vote given by him in Parliament or its committees. This freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament.26
  2. They are exempted from jury service. They can refuse to give evidence and appear as a

witness in a case pending in a court when Parliament is in session.

Breach of Privilege and Contempt of the House

“When any individual or authority disregards or attacks any of the privileges, rights and

immunities, either of the member individually or of the House in its collective capacity, the

offence is termed as breach of privilege and is punishable by the House.”

Any act or omission which obstructs a House of Parliament, its member or its officer in the

performance of their functions or which has a tendency, directly or indirectly to produce results

against the dignity, authority and honour of the House is treated as a contempt of the House.

Though the two phrases, ‘breach of privilege’ and ‘contempt of the House’ are used interchangeably,

they have different implications. ‘Normally, a breach of privilege may amount to contempt of the House. Likewise, contempt of the House may include a breach of privilege also. Contempt of the House, however, has wider implications. There may be a contempt of the House without specifically committing a breach of privilege’.Similarly, ‘actions which are not breaches of any specific privilege but are offences against the dignity and authority of the House amount to contempt of the House’. For example, disobedience to a legitimate order of the House is not a breach of privilege, but can be punished as contempt of the House.

Sources of Privileges

Originally, the Constitution (Article 105) expressly mentioned two privileges, that is, freedom of

speech in Parliament and right of publication of its proceedings. With regard to other privileges, it

provided that they were to be the same as those of the British House of Commons, its committees and

its members on the date of its commencement (ie, 26 January, 1950), until defined by Parliament. The

44th Amendment Act of 1978 provided that the other privileges of each House of Parliament, its

committees and its members are to be those which they had on the date of its commencement (ie, 20 June, 1979), until defined by Parliament. This means that the position with regard to other privileges remains same. In other words, the amendment has made only verbal changes by dropping a direct reference to the British House of Commons, without making any change in the implication of the provision.

It should be noted here that the Parliament, till now, has not made any special law to exhaustively

codify all the privileges. They are based on five sources, namely,

  1. Constitutional provisions,
  2. Various laws made by Parliament,
  3. Rules of both the Houses,
  4. Parliamentary conventions, and
  5. Judicial interpretations.

SOVEREIGNTY OF PARLIAMENT

The doctrine of ‘sovereignty of Parliament’ is associated with the British Parliament. Sovereignty

means the supreme power within the State. That supreme power in Great Britain lies with the

Parliament. There are no ‘legal’ restrictions on its authority and jurisdiction. Therefore, the sovereignty of Parliament (parliamentary supremacy) is a cardinal feature of the British constitutional system. According to AV Dicey, the British jurist, this principle has three implications:

  1. The Parliament can make, amend, substitute or repeal any law. De Lolme, a British political analyst, said, ‘The British Parliament can do every thing except make a woman a man and a man a woman’.
  2. The Parliament can make constitutional laws by the same procedure as ordinary laws. In other words, there is no legal distinction between the constituent authority and the legislative authority of the British Parliament.
  3. The Parliamentary laws cannot be declared invalid by the Judiciary as being unconstitutional.

In other words, there is no system of judicial review in Britain.

The Indian Parliament, on the other hand, cannot be regarded as a sovereign body in the similar sense

as there are ‘legal’ restrictions on its authority and jurisdiction. The factors that limit the sovereignty

of Indian Parliament are:

  1. Written Nature of the Constitution

The Constitution is the fundamental law of the land in our country. It has defined the authority and

jurisdiction of all the three organs of the Union government and the nature of interrelationship

between them. Hence, the Parliament has to operate within the limits prescribed by the Constitution.

There is also a legal distinction between the legislative authority and the constituent authority of the

Parliament. Moreover, to effect certain amendments to the Constitution, the ratification of half of the

states is also required. In Britain, on the other hand, the Constitution is neither written nor there is

anything like a fundamental law of the land.

  1. Federal System of Government

India has a federal system of government with a constitutional division of powers between the Union

and the states. Both have to operate within the spheres allotted to them. Hence, the law-making

authority of the Parliament gets confined to the subjects enumerated in the Union List and Concurrent

List and does not extend to the subjects enumerated in the State List (except in five abnormal

circumstances and that too for a short period). Britain, on the other hand, has a unitary system of

government and hence, all the powers are vested in the Centre.

  1. System of Judicial Review

The adoption of an independent Judiciary with the power of judicial review also restricts the

supremacy of our Parliament. Both the Supreme Court and high courts can declare the laws enacted

by the Parliament as void and ultra vires (unconstitutional), if they contravene any provision of the

Constitution. On the other hand, there is no system of judicial review in Britain. The British Courts

have to apply the Parliamentary laws to specific cases, without examining their constitutionality,

legality or reasonableness.

  1. Fundamental Rights

The authority of the Parliament is also restricted by the incorporation of a code of justiciable

fundamental rights under Part III of the Constitution. Article 13 prohibits the State from making a law

that either takes away totally or abrogates in part a fundamental right. Hence, a Parliamentary law that

contravenes the fundamental rights shall be void. In Britain, on the other hand, there is no codification

of justiciable fundamental rights in the Constitution. The British Parliament has also not made any law

that lays down the fundamental rights of the citizens. However, it does not mean that the British

citizens do not have rights. Though there is no charter guaranteeing rights, there is maximum liberty in

Britain due to the existence of the Rule of Law.