Constitutional Law
Tutorial 1
A Study on Parliamentary Privileges and The Need for its Codification
Atharva Phanje
2019-24 Division A
19010323031
1
Index
Chapter Page Number
Title 1
Index 2
Research Objectives 3
Research Questions 3
Research Methodology 3
Abstract 4
Literature Review 7
Chapterization 8
History Of Parliamentary Privileges 9
Parliamentary Privileges in Modern 10
India
Conclusion 15
List of cases 16
References 16
2
Research Objectives
The research strives to accomplish the following objectives
- To understand the privileges given to members of the Parliament under the
Constitution of India
- To explain effectively the intricacies involved with this section and how it is
depending on the other parts of the Constitution
- To determine the constitutional importance of giving members of parliament
immunities and privileges.
Research Questions
The research aims to answer the following questions
- Why should members of parliament and the houses of parliament be given privileges?
- What would it take to codify the privileges of the Parliament?
- What would the result of such a codification be?
- Is there any scope of abuse of such privileges?
Research Methodology
The research is carried out in a Doctrinal manner, as it requires reading of case laws and
books in order to understand the roots of the privilege given to the parliament and its
members. The research is qualitative in its approach as it requires reading of statutes and
judgements so as to derive the reasoning behind it and the way to go forth with the
codification of said privileges.
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Abstract
The members of both the houses of our Parliament enjoy certain privileges, known as
Parliamentary Privileges. These are Rights and immunities that are put in place so as to aid in
independence and effectiveness of the parliament, and are enshrined under Article 105 of the
Constitution of India. Certain of these powers are available to the Individual as an MP, while
others are applicable to the Parliament, or more specifically, the House as a whole. The
Article reads-
“Powers, privileges, etc of the Houses of Parliament and of the members and committees
thereof
(1) Subject to the provisions of this constitution and the rules and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament
(2) No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no
person shall be so liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings
(3) In other respects, the powers, privileges and immunities of each House of Parliament,
and of the members and the committees of each House, shall be such as may from time to
time be defined by Parliament by law, and, until so defined shall be those of that House
and of its members and committees immediately before the coming into force of Section
15 of the Constitution (Forty fourth Amendment) Act 1978
(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in relation to persons who by
virtue of this constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of Parliament or any committee thereof as they apply in relation
to members of Parliament”1
This section defines all the immunities and powers that a Member of the Parliament has with
regard to the Parliamentary Privilege. Similar provisions have been enacted for the state
legislatures under article 194 of the Constitution of India.2
At the face of it, it does not seem much of a threat to constitutionalism, but upon further
inspection of sub clause (3), it can be seen how the parliament has power to define what it
1
INDIA CONST. art. 105
2
INDIA CONST. art. 194
4
means by privilege. This, in essence, puts the parliament above the constitution, as the
parliament decides what falls under its power and what does not, unlike the common notion
that the Constitution is above everything in terms of legal power.
To understand why codification is necessary, it is first important to understand why the call
for codification of these privileges is being met with resistance. Article 32 of the Constitution
empowers the Supreme Court to exercise judicial review over the matters of the Constitution.
If we were to codify the privileges, we can see how they will be under the purview of the
Judicial Review, and anything they say or do will not have the same, undefined immunity,
thus in breach of Parliamentary Sovereignty. However, we have to understand that we have
Popular Sovereignty, and not Parliamentary Sovereignty. All the organs of power work under
the guidance and supervision of each other, and in turn, for the people, and hence,
sovereignty lies with the people3, and therefore, lies the need for codification.
The research would like to bring to attention one such case in which the parliamentary
privilege was exercised. This is the case very commonly dubbed as the “Cash-for-query”
case.
A private news source conducted a sting operation in which 11 Members of the Parliament,
10 from the Lok Sabha and 1 from the Rajya Sabha were caught to be taking money to raise
issues in the Parliament. An Inquiry Committee of the Lok Sabha, subsequently, adopted a
motion to expel the 10 members from Membership of the House, and deeming the actions
unethical. A similar approach was taken by the Rajya Sabha, with its Ethics Committee
releasing a notification expelling the Member with immediate effect.4
It was the contention of Mr. Raja Ram Pal, one of the people expelled, that the parliament
does not have the power to expel its members, and took the matter to court. In addition to
Article 105, there is also no mention of such a power be in the hands of the Parliament in
Article 102, which deals with the disqualification of membership.5
The Court had to decide whether if the Parliament held such a power as to expel its members,
and if it did, was it subject to judicial review, and the scope of its judicial review. 6 The Court
held that the Power of Expulsion does not come into conflict with any Constitutional
3
S.N. Dwivedi, Location of Soverignty, 9 J. OF THE INDIAN LAW INSTITUTE 71 (1967),
www.jstor.org/stable/43949964
4
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha, & Ors. (2007) 3 SCC 184
5
INDIA CONST. art. 102
6
Shubhankar Dam, Parliamentary Privileges as Facade: Political Reforms and the Indian Supreme Court, 2007
SING. J. LEGAL STUD. 162 (2007).
5
Provisions, and therefore can not be negated on constitutional basis. However, the court also
held that the power to disqualify and expel a member of the parliament has been given under
Articles 101 to 104 of the Constitution, and under the Representation of People’s Act of
1951, and is not Under the Jurisdiction of the Parliament, and therefore, is to be set aside.
However, another Important point was made, that said that “Legislature can not claim
complete immunity from judicial review” thus showing us how Judicial Review can take
place in a scenario in which the Parliamentary Privilege has been abused.
6
Literature Review
Indian Constitutional Law by M. P. Jain
A vividly descriptive guide of the Constitution of India, this book is the prescribed textbook
for academics. The book is a comprehensive and demonstrative medium of explanation of the
complexities of the Indian Constitution.
The Constitutional Law of India by Dr. J. N. Pandey
Said by many a law student to be the perfect book for Constitutional Law, this book provides
lucid examples and simple explanations for the Constitution of India.
Parliamentary Privileges as Façade: Political Reforms and the Indian Supreme Court by
Shubhankar Dam in the Singapore Journal of Legal Studies
This Paper gives a vivid reading on the “cash for query” case in which 11 Members of the
Parliament were expelled from the Parliament, providing for analogies with classic English
Law.
Location of Sovereignty by S.N. Dwivedi in the Journal of Indian Law Institute
This paper tries to illustrate the source of sovereignty in India, and whether real sovereignty
is a truth or a myth.
Evolution of Parliamentary Privileges by Hans Raj in the Indian Journal of Political Science
This paper goes over the history of parliamentary privileges in India, starting from the British
Raj applying a modified version of the privileges found in the House of Commons, to hoe it
is now.
The Constitution Of India
The longest written constitution of all countries, this document keeps in mind all the
intricacies of a complex nation of the country, and is what makes India a Republic.
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Chapterization
The research will be divided in 4 primary parts, the first being the introduction to the
research, including the abstract and the methodology. The Second part will deal with how the
system of parliamentary privileges came into being in the Constitution of India, while the
third will deal with how the power is being used in today’s context, and common arguments
with regard to it. The Fourth and final chapter will sum it up with the way to go forward with
the issue, and suggestions, if any.
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2. The History of Parliamentary Privileges in British India and Its Inception
Parliamentary privileges have been laid down in the Constitution of India under Article 105.
These have been put forth in order to facilitate the Parliament to act and discharge its
functions without any impediment or interference, and without fear. Such privileges are given
to both the houses collectively and to the representatives and members severally. 7
MPs are given such privileges and liberties of a degree wider than what an ordinary citizen
would be entitled to. This is to ensure that the members of parliament and the parliament
itself can function effectively, without any obtrusion or intervention. The houses are given
privileges so it may exercise its authority, and protect the members from any obstacles they
might face in carrying out their duties so essential for the proper functioning of the
parliament, and in turn, the Nation itself.
The Government of India Act, put forth by our colonisers in 1919, was perhaps the first step
towards having parliamentary privileges. For the sake of this chapter, our colonisers will be
referred to as The Raj. Before the enactment of this Act, the Raj only had powers beyond the
regulation of their trade. The Act of 1919 then empowered the Raj the freedom of speech to
its legislators, saying that no member of the house was to be incriminated on the basis of their
stance, vote or speech in the House. However, this freedom was riddled with limitations
aplenty, with members often feeling freer to express their opinions outside the House. These
limitations arose out of the rules of procedure of the conduct of business and the strict
enforcement of rules by the presiding officer. This act also did not guarantee freedom from
arrest, and there were no punitive powers in the hands of the houses, thus leaving only the
recourse of arrest. This led to protests against having no privileges, and only a namesake. The
Government of India Act of 1935 too did not make any difference. The critically limited and
heavily burdened freedom of speech at the hands of the legislators was not enough to calm
their outrage, and the Second World War, that broke out in 1939 completely annihilated all
prospects of any changes being made to the law in place at the time, and therefore, there was
no further attention paid towards the issue.8
No freedom from arrest meant that any member that could be considered to be of any sort of
malice could be arrested at any time, on a charge either civil or criminal in nature, and the
charge could be real, imaginary, or completely fabricated. This would mean that the arrest
7
INDIA CONST. Art. 104
8
Hans Raj, Evolution of Parliamentary Privileges in India, 41 Ind. J. Pol. Sci. 295, 297-98 (1980)
9
would deprive the member from his or her say, and more gravely, instil a fear of speaking up
in a free manner, impairing the exercise of their duties.
We have taken, or dare the research say, inherited the principle of Parliamentary Privileges
form the British. In Britain, however, the House of Commons and the House of Lords were
formed under varying circumstances at different points in time. Moreover, in Britain, the
Houses of Parliament were not initially authorities concerning with the formation of Laws,
but were rather a body similar to courts. The shift in constitutional attitudes meant that this
was slowly going to change to what it is like today, although the House of Lords is still the
Highest court of Appeal in England.9
3. Parliamentary Privileges in Independent India
As we have seen in the Prior Chapter, the Indian Legislators wanted the Parliamentarians to
have certain rights and privileges owing to the fact that they were conferred with the
responsibility to run a nation so wide and diverse. The want for these rights escalated to
protests, which were then interrupted by the War. Lucky for the then members of the
Parliament, India gained Independence from British Raj in 1947, and the Constitution of
India came into power in 1950.
The new Constitution, widely regarded as the most comprehensive Constitution of any, under
Article 105, defined the privileges if the Two houses of the Parliament. It is worth noting that
Article 194 of the Constitution lays down the privileges of members of State Legislations,
which are the same as those laid down under Article 105 of the Constitution for the Members
of the Union Legislature, and therefore, any discussion on the Article 105 applies to state
legislations under Article 194.
The Privileges laid down by the Constitution for the sake of the Parliament are as follows
A. Freedom of Speech
Freedom of speech is of essence in any parliamentary democracy, and such freedom of
speech applies more to the parliament, for freedom of speech within the house of parliament
is of utmost importance in order to facilitate free and fearless flow of ideas as to how to run
9
K. C. Joshi, Parliamentary Privileges: A Sword or a Shield, 42 J. of Ind. Law Inst., 422 (2000)
10
the country. Therefore, since it is essential for the members to express themselves in a
manner free of fear, it is also essential to grant the members of parliament a guarantee that
they will not be penalised to say whatever crosses their mind during the proceedings of the
House.
The Freedom of speech has been laid down in the constitution under Article 105(1), which
basically says that there shall be freedom of speech in the parliament. 10 This freedom,
according to the Constitution, is subject to the provisions of this constitution. This refers to
Article 118 and Article 121, which regulate the Parliamentary Procedures.
The Next Sub-clause in the Article, Article 105(2) complements perfectly the previous sub-
clause. By this, the research means that while the First sub-clause grants the freedom of
speech, the second sub-clause grants immunity from being tried in the courts for the same.
This article goes on to add that not only can a person not be tried for what he says or votes for
during the proceedings of the Parliament, but also that he or she shall not be tried for any
publication made by him or her under the authority of the Parliament or any authority
conferred to him or her by the parliament. 11 This freedom too, is subject to the provisions of
the Constitution.
Under both these sub-clauses, the degree of freedom is curtailed by the provisions laid down
by the constitution, like the one given under Article 121, which prohibits any member of the
parliament from discussing the conduct of any judge of the Supreme Court or the High Court
unless the discussions are in order to consider the removal of the Judge from his duties. This
is important as to maintain the independence of the judiciary and for it to function without
political pressures.12
Here, we take a look at the Case of Jagdish Gandhi vs. Legislative Council of UP. Here, Mrs.
Savitri Shyam, a member of the Legislative Council of Uttar Pradesh claimed in the Council
that Montessori School teachers were made to perform in private functions and were detained
until late in the night, and such in not education. She further went on to say that grants given
to such schools are a mere waste of government resources, and strict action must be taken
against them. Jagdish Gandhi, the Manager of City Montessori School in Uttar Pradesh, was
the petitioner in this case, and his institute had several branches across the town, with more
than 2500 students across all branches. He decided to send a representative of his institute to
10
INDIA CONST. Art. 105(1)
11
INDIA CONST. Art. 105(2)
12
INDIA CONST. Art. 121
11
her office in order to ask for clarification, but the MLC only reasserted her statement.
Subsequently, Mr. Jagdish wrote a letter to her, along the lines of staging a hunger strike
outside of her office if she does not retract her statement. This caused Mrs. Savitri to move
the house for the breach of her privilege. Later, he received a letter from the Secretary of the
House to receive the punishment of reprimand. Upon this, a writ petition was filed, and it was
hence held that if a person has been aggrieved by a speech by a member of a house, he or she
has no remedy in court, but can be dealt with the presiding officer of the House.13
Another case that can be used to illustrate the first and second sub-clause of Article 105 is the
case of Tej Kiran Jain vs. Sanjiva Reddy. In this case, the plaintiffs were devotees of Guru
Shankaracharya. In 1969, during a conference, Shankaracharya said that untouchability is one
of the basic principles of Hinduism, and that no law can be made to stand in the way of it.
Following this, Mr. Narendra Kumar Salve, a member of the Parliament from Detul gave
particulars of what had happened, which soon followed with a frenzy of jokes and puns. This
aggrieved Tej Kiran Jain among the other disciples of Guru Shankaracharya, who decided to
reach the court against six members of the Parliament. The High court rejected their plea, and
the plaintiffs appealed to the supreme court. Unsurprisingly, the Supreme court, citing Art.
105(1) and (2), rejected their plea, stating that the elected representatives of the people shall
be free to express themselves without fear of legal backlash. The members are subjected to
the discipline of the Presiding officer, and that the courts do not, and shall not have a say in
such matters.14
A very defining case in this matter would be that of P.V. Narsimha Rao. The year is 1993,
and the government of the day has seen better days. The Narasimha Rao-led government had
failed to enjoy the majority in the house, and subsequently, a vote of no-confidence was
passed against his government. To dodge this bullet, members of the Ruling Party routed
sums of money towards a few members of the Jharkhand Mukti Morcha to vote against the
motion. By virtue of this, the motion was defeated 251 to 265, and the government did not
fall.
This begged for answers to two questions.
First, whether a member of parliament can claim immunity from prosecution before a court
on the charge of bribery relating to proceedings in parliament? Second, whether a member of
the Parliament is a ‘Public Servant’ under the prevention of Corruption Act, 1988?
13
Jagdish Gandhi v. Legislative Council (1966) AIR All. 291
14
Tej Kiran Jain and ors. V. N. Sanjiva Reddy and Ors. (1970) 2 SCC 272
12
The research will answer the second question first since it is easier to get it out of the frame.
All the judges of the 5-judge bench agreed that Members of Parliament can be seen as Public
Servants, as they satisfy all requirements given under Section 2 of the Prevention of
Corruption Act.
The first question, however, divided the bench into two, 3 for 2. The majority claimed that
the bribe-giving party can claim no immunity, while the bribe-taking party can, since they
have taken the sums as a motive or reward for defeating the motion. They insisted that for the
members need more protection in order to carry out their functions, and that if a member was
to give a dissenting opinion, he or she shall not be prosecuted for bribery just cause.
Ironically, Ajit Singh, a member who had taken the bribe but had not voted, was held liable.
The minority held the opinion, however, that the immunity under the second sub-clause only
be interpreted as immunity against the liability arising from what they said in their official
capacity. The Minority judges further argued that members who accepted bribes for voting in
parliament have liability that is independent of making a speech or giving a vote in the
parliament.15
While the researcher is quite aware of the fact that his critique on such a case is not binding
in any form, it is still worth noting that the researcher prefers the minority view over the
majority view, and that any sort of corruption in the highest house of democracy in India is
utterly disregarding of the trust of the voters who put them there. The members of parliament
ought to strive to set a very high bar of morality when compared to a normal citizen, owing to
the fact that they hold more powers in their hands when compared to an ordinary citizen.
These aforementioned privileges have been expressly put forth upon the parliament by the
constitution. However, the constitution does not give an exhaustive account of all the
privileges of the parliament, as can be seen under Sub-clause 3 of Article 105. Initially saying
that the privileges for both the houses were similar to the house of commons, owing to
India’s sovereignty, it was imperative to remove this reference to our colonisers, which was
removed in the 44th amendment. The now standing article reads that the powers of each house
shall be such as may from time to time be defined by the parliament by law, and until so
defined shall be those as were before the Forty-fourth amendment to the constitution.16
15
P.V.Narasimha Rao v. State (CBI/SPE) (1998) 4 SCC 626
16
INDIA CONST. Art.105(3)
13
In essence, this means nothing has really changed, except for the fact that the reference has
been dropped. Any questions arising out of such must still be referred to the Privileges of the
House of Commons. Privileges arising out of this clause are as mentioned below
1 Freedom from Arrest
A member may not be arrested on a civil proceeding 40 days after and prior to a session of
the house, so as to ensure safe arrival and regular attendance.
2 Inquiries
A house has the power to start an inquiry and order witnesses. A person charged with
contempt and breach of privilege can be ordered to attend, and wilful disobedience of such an
order can prompt the house to take such a person into custody.
3 Disciplinary Action over members
The House of parliament can enforce punishments for offending the conduct of the house, or
to expel a person for behaviour unbecoming for a member of the parliament. Such a question
was raised in the case of Raja Ram Pal vs The Hon’Ble speaker, rightfully dubbed as the
cash-for-query case, where the expulsion of Raja Ram Pal for taking bribes for raising
queries in the parliament was held to be within the view of the constitution.17
4 Freedom from jury service
As the title suggests, members of parliament are exempt from obligation to jury service and
appearing in court as a witness or to give evidence when the parliament is in session.
5 Privacy of Debates
Again, as the title suggests, the houses have the rights to exclude strangers from its
proceedings and to not telecast the proceedings live. This may be for a variety of reasons,
including matters of national security.18
There are many more such privileges which have not been codified, and thus, call for the
need of codification of parliamentary privileges.
17
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha, & Ors. (2007) 3 SCC 184
18
JAIN M.P., INDIAN CONSTITUTIONAL LAW 110 (8th Ed. 2018)
14
4. Conclusion
As was cleared up in the previous chapters, it is imperative for the proper functioning of a
parliament to have parliamentary privileges given both to the members of the parliament as
well as the house as a whole. However, as we have also seen in the previous chapters, it is of
grave importance for these privileges to be codified, as without codification, there is an
ambiguity as to the principles of such privilege. These privileges can therefore be abused and
misused by the members of the parliament. Having the judiciary have no say over these
matters does not help either, as the judiciary, being an independent body, can give a clear
solution as to such matters. However, this does not go to suggest that the judiciary shall be
given extra-ordinary powers to look over such matters. One suggestion would be to have such
matters to be referred to the supreme court but only at the discretion of the presiding officer
of the respective house.
There is also an urgent need for the codification of these privileges, as they are currently
heavily dependant on the privileges of the House of Commons, a body not inside the
jurisdiction of any body in India. This will help in decrease ambiguity among the cases
concerning such privileges.
15
List of Cases
- Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha, & Ors. (2007) 3 SCC 184
- Kalpana Mehta and ors. Vs. Union of India and ors. (2018) SCC OnLine SC 512
- P. V. Narsimha Rao vs State (1998) AIR SC 2120
- Jagdish Gandhi v. Legislative Council (1966) AIR All. 291
- Tej Kiran Jain and ors. V. N. Sanjiva Reddy and Ors. (1970) 2 SCC 272
References
- SCC Online
- HeinOnline
- JStor
- Indian Constitutional Law by MP Jain
- The Constitutional Law of India by Dr. J. N. Pandey
- The Constitution of India Bare Act
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