Indian Parliament – A Privileged Pillar

G. L. Batra, ST Guest Columnist, Writer & formerly Addl. Secretary, Indian Parliament and Chairman, Public Service Commission of the Indian State of Haryana

In pursuance to the provisions enshrined in Article 105 of the Constitution, there are certain rights and amenities which are enjoyed by each House of Parliament, and by the committees of the House collectively, and the members individually. Similarly, Article 194 prescribes rights and privileges for the Houses of the State Legislature, their committees and members. These rights and privileges in Parliamentary language are known as Parliamentary Privileges.

The evolution and development of Parliamentary privileges has a long history behind it.  The British Parliament waged a long and hard struggle against executive authority, in the old times when the executive was not accountable to Parliament, to obtain, maintain and extend these rights and amenities. In the Indian context, under our Constitution, the executive is accountable to Parliament, and these privileges have come to be viewed in a new light, and are now deemed necessary to maintain the dignity, authority and freedom of the House.

Parliamentary Privileges can be briefly divided into four main categories:

  • those which are provided for in the Constitution of India;
  • those which are provided for in the statutes;
  • those which are provided for in the Rules of Procedure and Conduct of Business in the Lok Sabha, and
  • those which have been adopted by way of conventions and precedents.

Parliamentary Privileges are provided in Article 105 of the Constitution, which refers to the privileges of both Houses of Parliament, its committees and members. Analogous provisions for privileges for the State Legislatures are provided for in Article 194. According to Article 105, there will be freedom of speech in Parliament, and no member shall be liable in any court of law, for anything said or any vote given by him in the House. The word ‘anything’ has been construed by the courts to mean and include ‘everything’ in various cases. This provision is useful so as to guarantee our legislators the freedom to perform their functions and responsibilities effectively and without fear of hindrance of legal action. Thus, members of Parliament are not liable in any civil or criminal action for things said in Parliament, while the same thing said outside the House, may make him liable to prosecution for defamation, damages etc. Further, no person is liable for having published in a bonafide manner and without malice, any Parliamentary debate or vote, under the authority of the House. The proceedings of the House are not subject to judicial scrutiny.

Parliamentary Privileges are also provided by some statutes. The Code of Criminal Procedure provides that no Member of Parliament may be arrested in pursuance of a civil or revenue decree when the House is in session, and within a period of 40 days, prior to the commencement of a session of the House and after its prorogation.

Certain Privileges are also contained in the Rules of Procedure and Conduct of Business of the House. Under these rules, Parliament has to be informed of the arrest, detention, conviction or sentence of any of its members, and any authority making such arrest or detention, has to inform the Speaker or Secretary General of the House of such arrest or detention. Members cannot be served with legal process, or arrested on a criminal charge while in the precincts of the House without the prior permission of the Speaker. The House has the right to prohibit the disclosure of its proceedings or the decisions of a secret sitting.

Some Privileges owe their existence to precedents. Amongst these are that no member or officer of the House may be compelled to give evidence or produce any document in any court of law, which relates to the proceedings of the House, without the prior sanction of the House. Members or officers of one House cannot be compelled to attend as witness before the other House or its Committees without the prior permission of the House to which they belong.

A Disregard or violation of any of the privileges of the House is termed a ‘Breach of Privilege’ and is punishable by the House. An act may be contempt of the House, even if it does not qualify as a ‘breach of privilege’. Contempt of the House may be defined as an act or omission which obstructs or tends to obstruct the proceedings of the House, or its members or officers in the discharge of their duties towards the House. Acts which have an adverse effect on the proceedings of the House or bring the House into odium or ridicule may also constitute contempt.

Apart from having these powers, amenities and privileges, the House has the consequential powers to protect and enforce them so as to prevent their becoming infructuous. The House has the power to decide what constitutes a breach of privilege or contempt, and to commit any person, including its members, to custody, in order to punish them for breach of privilege and contempt of the House, and this power is analogous and akin to the powers enjoyed by the Courts. These powers of the House are general in nature, and what would constitute contempt or breach of privilege, would depend on the situation. The Courts too have laid down that the House has the exclusive jurisdiction to decide as to what would constitute contempt and the courts would not go into it. The House also has the power to issue warrant, the form of which is general, and no specific guidelines have been issued in this regard. The warrants can be executed through the officers of the House, as also through civil authorities, and the authorities have been given the power even to break open locks, to apprehend any contemnor[1].

The House may punish any person for its contempt or breach of its privilege. Thus, admonitions, reprimands and confinement in jail might be awarded to such person. The duration of punishment is coterminous with the duration of sitting of the House, and the person so punished, will have to be released automatically when the House is prorogued. The House however, has the further right, if it feels that the period of punishment awarded is not sufficient, to order that the person punished be dealt with in accordance with the normal law of the land. Members of the House who have committed contempt or breach of privilege may be given the additional punishment of suspension from the sittings of the House, and expulsion. It is not essential that the act or omission construed as contempt or breach of privilege be committed within the four walls of the House, and acts or omissions done outside Parliament may also fall under the categories of contempt or breach of privilege.

An important aspect of Parliamentary Privilege deals with the Press. The Press has often been called an extension of Parliament, and a free and impartial Press is an absolutely essential feature of a democracy. News that appears in the Press may influence members of Parliament and provide them with the necessary background, but the material itself does not form an authentic record of facts, and a Member may not place absolute reliance on a matter reported in the Press. Thus, several Speakers of the Lok Sabha have ruled that questions, motions and other notices which are based solely on Press reports may not be admitted, and the member may be required to provide some primary factual basis to support the notice.

Freedom of the Press, while not expressly provided for in our Constitution, is implicit in Article 19(1)(a) which provides for freedom of speech and expression. The Committee of Privileges of the Sixth Lok Sabha in their Fourth Report (1979) observed, “The committee are conscious that the freedom of the Press is an integral part of the fundamental right of freedom of speech and expression guaranteed to all citizens under article 19(1)(a) of the Constitution. The Committee considers it important that in a Parliamentary system, the Press should enjoy complete freedom to report the proceedings of Parliament fairly and faithfully. If, however, freedom of the Press is exercised malafide, it is the duty of Parliament to intervene in such cases. At the same time the Committee are of the view that Parliamentary Privilege should in no way fetter or discourage the free expression of opinion or fair comment”.

Regarding the sensational ‘Blitz’ case, the Committee of Privileges of the second Lok Sabha observed that “Nobody would deny the Press, or as a matter of that, any citizen, the right of fair comment. But if the comments contain personal attacks on individual members of Parliament on account of their conduct in Parliament or if the language of the comments is vulgar or abusive, they cannot be deemed to come within the bounds of fair comment or justifiable criticism. Even the Press Commission (1954) held the view that ‘comment couched in vulgar or abusive language is unfair’. Nor can ‘fair comment’ be stretched to include irresponsible sensationalism”.

It is also considered a breach of privilege and contempt of the House to publish expunged proceedings of the House. In the famous ‘Searchlight’ case[2], the Supreme Court, referring to the status of proceedings expunged by the Speaker, held that “The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report of a speech, i.e. including the expunged portions in derogation to the orders of the Speaker passed in the House may, prima facie be regarded as constituting a breach of the privilege of the House arising out of the publication of the offending news item.”

Before it was determined and decided to telecast the proceedings of both Houses of Parliament, it was only the Press and accredited members of the press who were permitted in the press gallery, and anything if published, reflecting the adverse conduct of the members, or the remarks which were expunged by the Speaker, if published, matters of breach of privilege used to be raised.  In the era of live telecasting of proceedings the expunction by Speaker or for that matter the Chairman of Rajya Sabha has become infectious as far as the public consumption debate is concerned. However, its legality in the form of official proceedings still remain. Though at present the position, if not dismal, is of course alarming. However, it is the relentless faith and trust in the wisdom of our members that they would decide to take care of it, failing which, these situations are likely to adversely affect the image of the country in the world. We cannot and should not take into consideration that it happens in the House of Commons or in the Parliament of other western countries, and to say that such disturbances are in no way peculiar to India but a world phenomenon. Shri K R Narayanan former President of India noted, “I recall that in Australian Parliament, the leader of opposition threw a glass filled with water at the Prime Minister sitting on the treasury bench. In the same house, the Speaker once collapsed on the floor and breathed his last under the stress of an all-night troubled debate[3].” Uproarious scenes and heated exchanges are frequently seen in different countries and even in the House of Commons, the Mother of Parliaments, disorder and disturbances have become frequent during the last decade. It is no consolation to say that such disorderliness and disregard for the dignity and decorum of the House is a global phenomenon. We have different traditions and virtues of restraint, sagacity, and conduct emanating from our ancient past and which should remain imbibed in us. We were and are one of the most civilised nations in the world and such type of things ought to be foreign to us.

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[1] Rules of Procedure, Rules 229-233, p 91

[2] M.S.M. Sharma vs. S.K. Sinha, AIR 1959 S.C. 395

[3] “Fifty Years of Indian Parliament”, Ed. G. C. Malhotra, Lok Sabha Secretariat, 2002 – p 2