Parliamentary Privileges

Parliamentary privileges stand as a crucial aspect of the legislative system, providing lawmakers and legislative institutions with essential rights and immunities vital for the effective functioning of democracy. Rooted in constitutional provisions and historical precedents, these privileges empower parliamentarians to carry out their duties without fear or hindrance, ensuring the autonomy, integrity, and efficiency of legislative bodies. This article of Next IAS aims to study in detail the parliamentary privileges, their meaning, constitutional provisions, classification, significance, international practices, and other related aspects.

Meaning of Parliamentary Privileges

Parliamentary privileges refer to the special rights, immunities, and exemptions enjoyed by the two Houses of Parliament, their committees, their members, and those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees.

Entitlement of Parliamentary Privileges

The Indian Constitution has extended parliamentary privileges to

• the two Houses as a whole,
• all the Members of Parliament,
• all the committees of Parliament,
• all the Union Ministers, and
• the Attorney General of India,

Note: The parliamentary privileges are not extended to the President, although he/she is an integral part of the Parliament.

Need for Parliamentary Privileges

These privileges are aimed to ensure that the legislative system of the country functions smoothly and effectively, without any undue interference or intimidation. Their needs can be seen as follows:

• To secure independence and effectiveness of the actions of persons/bodies associated with the parliamentary functions.
• To maintain the authority, dignity, and honor of the houses of the Parliament.
• To protect the persons associated with Parliamentary functioning from any obstruction in the discharge of their parliamentary responsibilities.

Classification of Parliamentary Privileges

The Parliamentary Privileges in India are classified into two categories:

• Individual Privileges – Individual Privileges refer to the rights, immunities, and exemptions enjoyed by the members of the Parliament individually.
• Collective Privileges – Collective Privileges refer to the rights, immunities, and exemptions enjoyed by each house of the Parliament collectively.

Individual Parliamentary Privileges

– They cannot be arrested during the session of Parliament, 40 days before the beginning and 40 days after the end of a session. a. This privilege is available only in civil cases and not in criminal cases or preventive detention cases. – 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/her in Parliament or its committees. a. This freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament. – 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.

Collective Parliamentary Privileges

– It has the right to publish its reports, debates, and proceedings and also the right to prohibit others from publishing the same. a. However, 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. – It can exclude strangers from its proceedings and hold secret sittings to discuss some important matters. – It can make rules to regulate its procedure and the conduct of its business and to adjudicate upon such matters. – 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 the case of members). – It has the right to receive immediate information on the arrest, detention, conviction, imprisonment, and release of a member. – It can institute inquiries, order the attendance of witnesses, and send for relevant papers and records. – The courts are prohibited from inquiring into proceedings of a house or its committees. – No person, either a member or outsider, can be arrested, and no legal process, civil or criminal, can be served within the precincts of the house, without the permission of the Presiding Officer.

Breach of Privilege and Contempt of the House

Although the phrases “Breach of Privilege” and “Contempt of the House” are often used interchangeably, they differ in their meaning. The difference between these concepts can be seen as follows:

Breach of Privilege	Contempt of 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, such offense is termed a 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 honor of the House is treated as a Contempt of the House.

Thus, the Contempt of the House has wider implications.

Normally, a Breach of Privilege may amount to Contempt of the House. Likewise, the Contempt of the House may include a Breach of Privilege also. However, there may be cases where Contempt of the House is committed without specifically committing a Breach of Privilege. Similarly, there may be actions that are not breaches of any specific privilege but are offenses against the dignity and authority of the House, thus amounting 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.

Origin of Parliamentary Privileges in India

The evolution of Parliamentary privileges in India can be seen as follows:

• Originally, the original Constitution, under Article 105, explicitly mentioned two Parliamentary Privileges:
  • Freedom of speech in Parliament, and
  • Right of publication of its proceedings.
• With regard to other privileges, Article 105 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 i.e. 26th January 1950, until defined by Parliament.
• Later, the 44th Constitutional 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 have on the date of its commencement until defined by Parliament.
• Thus, 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.
• The Indian Parliament has not yet made any special law to codify all the privileges exhaustively. Thus, as of now, the position with respect to other privileges remains the same as it was on the date of commencement of the Constitution.

Current Sources of Parliamentary Privileges in India

At present, the Parliamentary Privileges in India are based on the following five sources:

• Constitutional provisions,
• Various laws made by Parliament,
• Rules of both the Houses of Parliament,
• Parliamentary conventions, and
• Judicial interpretations etc.

Important Judgments related to Parliamentary Privileges

• P.V. Narasimha Rao vs State (CBI/SPE) Case, 1998 – In this case, the Supreme Court ruled that the lawmakers, who accepted bribes, could not be prosecuted for corruption if they followed through with voting or speaking in the House as agreed.
• State of Kerala Vs. K. Ajith and Others 2021 – The Supreme Court has observed that parliamentary privileges and immunities are not gateways to claim exemptions from the general law of the land which governs the action of every citizen.
• Sita Soren Vs Union of India Case, 2024 – In this case, the Supreme Court overturned its judgment in the P.V. Narasimha Rao vs State (CBI/SPE) Case, 1998. The court said that the parliamentarians do not enjoy Parliamentary Immunity for acts of bribery.

Significance of Parliamentary Privileges

Parliamentary privileges in India are essential for the effective operation and autonomy of the Parliament. They serve several key purposes:

• Ensuring Independence and Autonomy – Parliamentary privileges are fundamental to maintaining the independence and autonomy of the legislature from external pressures and influences from the executive or judiciary. This, in turn, enforces the principles of Separation of Powers.
• Facilitating Open Debates – By allowing the Members of Parliament (MPs) to express their views and opinions freely without fear of litigation or prosecution, they play a crucial role in facilitating open and honest debate on matters of public interest.
• Facilitating Scrutiny of Government – By protecting MPs from civil or criminal actions for activities conducted within the course of their parliamentary duties, they enable proper scrutiny of the government’s actions and initiatives.
• Maintaining Order and Discipline – Parliamentary privileges extend to the enforcement of discipline within the House.
• Upholding the Dignity of the Institution – Parliamentary privileges help in upholding the dignity and respect of the Parliament as an institution.

Criticism of Parliamentary Privileges

Parliamentary privileges in India are criticized on the following grounds:

• Hinders Public Scrutiny – Critics argue that parliamentary privileges can sometimes be used to shield proceedings from public scrutiny, potentially hiding misconduct or decisions that should be transparent to the public.
• Potential for Abuse – There is concern that the broad scope of these privileges can lead to abuse, with members potentially using them to avoid legal accountability or to suppress freedom of speech and press under the guise of protecting parliamentary operations.
• Scope of Ambiguity – Most of the privileges being based on conventions, precedents, and unwritten rules, results in ambiguity and inconsistencies in how privileges are applied and understood.
• Impediment to Democratic Accountability – The broad protection offered to the members can sometimes act as a barrier to holding them accountable for their actions, both within the legislative context and in their interactions with the public.
• Outdated – Certain aspects of parliamentary privilege, especially those inherited from historical practices, may no longer be appropriate or necessary in a modern, democratic society where transparency, accountability, and public scrutiny are valued.

International Practices Regarding Parliamentary Privileges

Some of the best practices regarding Parliamentary Privileges adopted by different countries can be seen as follows:

• United Kingdom: The Westminster Parliament possesses privileges such as the freedom of speech within the house, exemption from arrest, and the autonomy to govern its internal affairs. These privileges are a blend of statutory law, common law traditions, and historical precedents.
• Canada: Members of the Canadian Parliament are granted privileges that include the right to speak freely, immunity from arrest in civil cases, and the authority to address violations of these privileges.
• Australia: The parliamentary privileges are constitutionally guaranteed, affording members the right to free speech, immunity from arrest in civil matters, and the capacity to manage their legislative processes independently.

Arguments for Codifying Parliamentary Privileges

• Precision and Clarity – Establishing a codified set of parliamentary privileges would delineate their boundaries clearly, reducing ambiguities and specifying the actions considered violations, alongside predetermined penalties.
• Accountability and Oversight – A codified framework would introduce a structured approach to parliamentary privileges, promoting responsible exercise by parliamentarians and facilitating effective oversight mechanisms.
• Modernization and Relevance – The codification process would offer an avenue to modernize privileges in alignment with current governance and societal standards, ensuring that parliamentary privileges evolve in response to the changing political and social landscape.
• Introduction of Checks and Balances – Codification can provide an opportunity to implement checks and balances to prevent abuse.

Arguments Against Codifying Parliamentary Privileges

• Potential Threat to Legislative Independence – Codification might inadvertently constrain parliamentary autonomy by making parliamentary processes more susceptible to external oversight or judicial intervention, potentially undermining the self-regulatory capacity of the legislature.
• Constitutional Constraints – The proposal to codify parliamentary privileges might conflict with constitutional provisions, such as Article 122, which limits judicial scrutiny over parliamentary procedures and emphasizes the independence of parliamentary proceedings.
• Loss of Flexibility – A rigid codified system could limit the parliament’s ability to adapt to unique situations or emerging political challenges, as the flexibility inherent in the current system allows for a dynamic response to unforeseen events.
• Procedural Complexity – The journey towards codification is fraught with complexities, requiring broad consensus among a diverse set of stakeholders.

Way Forward

• To address ambiguity and inconsistency, parliamentary privileges should be clearly defined and codified where possible.
• To exercise greater transparency and accountability on the use of privileges, a mechanism for independent oversight can be devised.
• To ensure they remain relevant and effective in a changing political and social landscape, they should be periodically reviewed and updated.
• To ensure their effective and reasonable use, both parliamentarians and the public about the importance of parliamentary privileges, their scope, and their limitations.

Conclusion

Parliamentary privileges play a pivotal role in upholding the integrity, autonomy, and effectiveness of legislative bodies in a democratic system. While they serve as vital tools for fostering open debate, protecting legislative independence, and ensuring effective governance, they are also subject to some criticisms. There is a need for reforms in provisions related to parliamentary privileges to address challenges such as ambiguity, misuse, and lack of accountability.

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