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Are Parliamentary privileges absolute under Indian Constitution?

Privileges are special rights given to certain group or persons of importance so that they can perform their functions without any pressure.

Parliamentary privileges under Article 105 were given to enable Parliament and its members to discharge their function properly and freely.

In India, Article 105 and Article 294 of the Constitution deals with the privileges and immunities of Parliament and its members and State legislatures and their members, respectively.

Privileges under Article 105

Article 105 gives members of Parliament and its committees certain privileges. The privileges enjoyed by Parliament are:

1)  Those enjoyed by the members individually.

2)  Those which belong to each House as a collective body.

Individually MPs enjoy the following privileges

  1. Freedom from being arrested in civil cases during continuance of a meeting of the House or Committee of which he is a member and during a period of 40 days before & after such meeting.

However this freedom does not extend to arrest under

  • Preventive detention under statutory authority
  • In criminal cases.
  1. Freedom of speech providing immunity from court action for anything said in the House. However this freedom is
  • ‘Subject to rules’ framed by the house to maintain dignity.
  • Constitution also restricts this freedom by debarring discussion on the conduct of judges of Supreme Court & High Court (except for the removal of judge).
  1. Freedom from being summoned, without the leave of the House, to give evidence as a witness while Parliament is in session.

Collective Privileges

The House enjoys collective privileges of

  1. The right to publish debates & proceedings & right to restrain publication by others.
  2. The right to exclude stranger.
  3. The right to regulate internal affairs of the house without interference from court.
  4. Right to punish members & outsiders for breach of its privileges (The punishment may be an adjournment motion, reprimand or imprisonment).

NOTE: Similar privileges are provided for State Legislatures under Article 194.

Freedom of speech under Article 105 and Article 19 (1) (a)

Freedom of speech under Article 19 (1) (a) is subject to reasonable restrictions but under Article 105, it is absolute.

However, it is absolute only when it is said in the Parliament.

If a member publishes his/ her speech outside Parliament, he will be held liable if the speech is defamatory.

Extent of immunity under Article 105 

Article 105 (2) confers immunity in respect of anything said in the Parliament. The word “anything” is taken to mean “every thing”.

This was clearly evident in the “Vote for Note” case when Supreme Court ruled that immunity from court’s proceedings in Article 105 (2) extends even to bribes taken by the MPs for the purpose of voting in a particular manner in the Parliament.

However, the words “in the Parliament”, in the same case, was taken to mean “during the sitting of Parliament and in the course of the business of Parliament” and so the judges of Supreme Court, in that case, were unanimous that MPs who gave bribes, or who took bribes but didn’t participate in the voting could not claim immunity from court proceedings under Article 105 (2).

Right of Publication of Proceedings: an evolution towards transparent democracy

  • Article 105 (2) declared “no person shall be liable in respect of the publication by or under the authority of either house of Parliament of any report, paper, votes or proceedings” i.e. publications of Parliamentary proceedings were made prerogative of Parliament itself.
  • The Parliamentary Proceedings (Protection of Publication)v Act, 1956 states that “no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication of a substantially true report of the proceedings of either House of the  Parliament, unless it is proved that the publication is made with malice” i.e. publication by outsiders without any ill- intention was made permissible.
  • In 1975, Parliamentary Proceedings (Protection of Publication)v Act, 1956, was repealed by Indira Gandhi during Emergency.
  • In 1978, Janata Party passed 44th Amendment Act that added Article 361-A to the Constitution. Article 361-A is titled as “Protection of Publication of proceedings of Parliamentary and State Legislature.” It provides that “no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of the proceedings of either House of the  Parliament or the State Legislative Assembly, or as the case may be, either house of Legislature, of a state, unless the publication is proved to have been made with malice”.

However, it is provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of the  Parliament or the State Legislative Assembly, or as the case may be, either house of Legislature, of a state.

Privileges vs Fundamental Right: Supreme Court’s judgements

In Gunupati Keshavaram Reddi vs Nafisul Hasan case, Supreme Court ruled that Article 105/ Article 194 was subject to the fundamental rights guaranteed under Article 22 (2) in Part III of the Constitution.

However, in M.S.M. Sharma vs S.K. Sinha case, Supreme Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3), the later would prevail.

Conclusion

Going through various judgements and changes made by Parliament itself, one may conclude that Parliamentary privileges are not absolute in true sense, though in some cases it over rides other rights. 

So, we may conclude that Parliamentary privileges are still absolute but

  1. Within the walls of Parliament
  2. In case of secret sittings
  3. When not publicised
  4. When it does not contradicts some of the basic fundamental rights

 

 

 

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