PARLIAMENTARY PRIVILEGES | UPSC LAW OPTIONAL MAINS NOTES



Legislative powers, privileges and immunities


WHY SHOULD WE GIVE PRIVILEGES TO PARLIAMENT ? (UPSC 2004)

With a view to enable Parliament : to act and discharge its high functions effectively, without any interference or obstruction from any quarter, without fear or favour.(UPSC 2008)


FOR WHOM ? To each House collectively, and to the members thereof individually.


TO MEMBERS : Wider personal liberty and freedom of speech than an ordinary citizen. Even to non-members are under the Constitution entitled to speak and take part in the proceedings of a House or any of its committees. These persons are Ministers and the Attorney-General.


TO HOUSE :

1.It may vindicate its authority, prestige and power and protect its members from any obstruction in the performance of their parliamentary functions

2.In order to enable the House to fulfil its constitutional functions, to conduct its business and maintenance of its authority.

3.The privileges of a House have two aspects—(i) external, and (ii) internal.


EXTERNAL | They refrain anybody from outside the House to interfere with its working. This means that the freedom of speech and action are restricted to some extent.


INTERNAL | The privileges also restrain the members of the House from doing something which may amount to an abuse of their position.


SOURCE : Article 105 and 194 defines the privileges of the two Houses of Parliament and for State Legislatures respectively. Only a few privileges is defined in constitution, for the rest, it assimilates the position of a House to that of the House of Commons in Britain.


COMMITTEE OF PRIVILEGES :

1)Each House of Parliament has a Committee of Privileges to advise it in matters

affecting its powers, privileges and immunities as well as those of its members

and committees.


2) The Lok Sabha Committee consists of fifteen members nominated by the Speaker; the Rajya Sabha Committee has ten members nominated by the Chairman.


3)The necessary reference may be made to the committee either by the Speaker

or the Chairman suo motu, or by the House upon a motion of a member.


4)FUNCTION : It discharge its functions objectively with a judicial approach and in a non-political or non-partisan manner because, in a way, in deciding whether its privilege has been infringed or not, the committee is acting as a judge in its own cause.


To examine every question referred to it and to determine with reference to the facts of each case whether a breach of privilege is involved.


5)POWERS:

  • It can call for oral and documentary evidence.

  • The committee may administer oath or affirmation to a witness examined before it,

  • The committee may make such recommendations to the House concerned as it may deem fit. The recommendation of the committee is not binding on the House which may accept, modify or even reject the same.

  • Whenever some one is arraigned before the committee for breach of parliamentary privilege, it is necessary that he be given a full and fair opportunity to defend himself and explain his conduct.

I.Privileges Expressly Conferred by the Constitution :

a)Freedom of Speech

b)Publications under Parliamentary Authority

c)Rule-making Power

d)Internal Autonomy


II.Other Privileges :

a)Freedom from Arrest

b) Inquiries

c)Disciplinary Powers over Members

d)Freedom from Jury Service

e)Privacy of Debates

f)Publication of Proceedings

g)Power to punish for contempt


Legislative powers, privileges and immunities


PRIVILEGES EXPRESSLY CONFERRED BY THE CONSTITUTION


a)FREEDOM OF SPEECH :

What is the essence of parliamentary democracy ? It is a free, frank and fearless discussion in Parliament.

NO PENALIZATION : To express themselves freely in the House, it is essential to immunize them from any fear that they can be penalised for anything said by them within the House.


WHY? The rule of freedom of speech and debate in Parliament became established in Britain in the 17th century in the famous case of Sir John Eliot. Eliot was convicted by the Court of King’s Bench for seditious speeches made in the House of Commons. The House of Lords reversed this decision on the ground inter alia that the words spoken in Parliament should only be judged therein. Finally, the Bill of Rights, 1688, laid down that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. A member may thus say whatever he thinks proper within the House and no action can be brought against him in any court for this.


IN INDIA : In India, the freedom of speech in Parliament has been expressly safeguarded by Arts. 105(1) and (2).


  • Art. 105(1) says: “Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament”. The corresponding con-stitutional provision for the State Legislatures is Art. 194(1).


  • Article 105(1) secures freedomof speech in Parliament to its members. This freedom is “subject to the provisions of this Constitution”. These words have been construed to mean subject to the provisions of the Constitution which regulate the procedure of Parliament., i.e. Arts. 118 and 121.


  • Article 105(2) confers immunity in relation to proceedings in courts. It says that no member of Parliament is liable to any ‘proceedings’ in any court “in respect of” anything said, or any vote given in Parliament, or a committee thereof. The word ‘proceedings’ means any proceeding civil, criminal or even writ proceedings.Nothing said within a House is actionable or justiciable.

This freedom is, however, subject to the provisions of the Constitution.


1)SHOULD NOT SPEAK ABOUT CONDUCT OF THE JUDGES : A constitutional restriction imposed by Art. 121 on this freedom is that no discussion can take place in any House with respect to the conduct of a Supreme Court or a High Court Judge in the discharge of his duties except when a motion for his removal is under consideration.


WHY ? This provision is very essential to protect the integrity of the judiciary so that it can function without being subjected to political pressures and criticism which it cannot meet or answer publicly.


ONLY THE PRESIDING OFFICER CAN DETERMINE THE VIOLATION OF ART.121: However, the question whether a member has contravened Art. 121 while speaking in the House is one for determination by the presiding officer of the House and not for the court.


RULES OF PROCEDURE CAN REGULATE THE FREEDOM OF SPEECH: Further, the rules of procedure of a House can curtail the members’ freedom of speech so that the freedom may not degenerate into an unrestrained licence of speech.


If a member exceeds the limits imposed on this freedom by the Constitution or the rules of procedure of the House, he can be dealt with by the Speaker, or the House itself, but not by a court.


WHY? The Rajya Sabha has decided that a Parliament member cannot be questioned in any court or any place outside Parliament for any disclosure he makes in Parliament. The reason is that if such questioning is permitted, it would amount to interference with his freedom of speech in Parliament.


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