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Published : November 27, 2011 | Author : TapanshuGehlot
Category : Constitutional Law | Total Views : 14691 | Rating :

Tapanshu Gehlot 3rd Year, BBA -LLB University of Petroleum And Energy Studies, Dehradun

New Page 2

With the view and thought to unable parliament to work effectively and efficiently and to discharge its functions without any kind of obstruction or interference the privileges are provided to both the houses of parliament. The privileges are provided to each house collectively and to its members independently. An important as also a complicated question is : What do we understand by 'parliamentary privileges'? "Nothing", said Dicey, "is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament".

As per Oxford dictionary the term privilege refers to the “special right, advantage or a immunity to the particular person. It is special benefit or honour”. Hence it can be inferred that the term privileges referred to the special rights and advantages that are enjoyed by the members of parliament over the citizen of India. Various authors throughout the world has interpreted the word privileges according to the norms and scenario exists in their respective country.

India in the case of Raja Ram Pal v Hon’ble speaker defined the term privilege as “ A special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts”. Inherent in the term is the idea of something, apart and distinct from a common right which is enjoyed by all persons and connotes some sort of special grant by the sovereign. The word grant by sovereign refers o the privilege is conferred to them by the higher authority and the privilege an immunity is derived from them only to such members. As inspired by the privileges of house of the commons.

The privileges of house of commons has been defined as “the sum of the fundamental rights of the house and of its individual members as against the prerogative of the crown, the authority of the ordinary court of law and the special rights of the house of lord.

Sir Erskin May states- "Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members".

Sir Erskin, widening beautifully the scope of Privileges with inducing the concept of Power and Immunities of the members of parliament that exists in India too describes them as the necessity for parliament to perform its function with impeded use of services of its members. He consider it as the tool for collective discharge of its collective and important function. Sankar J. In a particular case stated that the right of the House to have absolute control of its internal proceedings may be considered as its privilege.

Sighted very rightly in the case of raja Ram Pal that “privilege depends on the known laws and customs of Parliament".

Thus, the term privilege is the special rights that are available in the different extent and in various forms to the members of parliament throughout the world. This privileges are important in order to enable the house to perform its functions authorized to them by constitution and for proper conduct of business.

Article 105 and 194 of the constitution of India deals with the power privileges and immunities of parliament and its members and of their state legislature and there members respectively. This constitution of India does not exhaustively enumerate the privileges of Indian parliamentarian. As section 3 of both these articles refers directly to the privilege of the house of commons at the commencement of the constitution. Hence it basically deals with all those privileges that exists in the house of commons as on 26. Jan. 1950.

Summarizing Article 105 and 194 of constitution of India it states-
105- Power, privileges, etc. of the house of parliament and of members and of committee thereof – (1) Freedom of Speech.

(2) No member shall be liable for any proceeding in respect to anything said or any vote given by him and no one shall be liable for any publication.

(3) In other respects, the powers, privileges and immunities of each house of parliament and of the members and the committee of each house, shall be as may from time to time defined by parliament and until so defined shall be those of house and of its members and committee immediately before coming into force of section 15 of constitution act 1978.

(4) The above provision shall apply to all those person who have right to speak in and otherwise to take part in proceeding of house of parliament.

194- Power , privileges, etc., of the house of legislature and of the members and committees thereof- (1) Freedom of speech.

(2) No member shall be liable for any proceeding in respect to anything said or any vote given by him and no one shall be liable for any publication.

(3) In other respects, the powers, privileges and immunities of each house of parliament and of the members and the committee of each house, shall be as may from time to time defined by legislature and until so defined shall be those of house and of its members and committee immediately before coming into force of section 26 of constitution act 1978.

(4) The above provision shall apply to all those person who have right to speak in and otherwise to take part in proceeding of that legislature.

Hence from the above 2 different Article of Indian constitution it can be inferred that the position of state legislature is same as those of house of parliament. Therefore Article 105 applies Mutatis Mutandis to the state legislature as well.

A.) FREEDOM OF SPEECH – The essence of the parliamentary democracy is a free, frank and fearless discussion in the parliament. For the body like parliament freedom of speech play very important role that enables the members to express their feelings without any kind of fear of penalising for the offences such as defamation, innuendo. The rule of freedom of speech in parliament became established in 17th century in case of Sir john Elito.

The Rajya Sabha held in its XII report that a parliament member cannot be questioned in any court or any place outside the parliament for any disclosure he made since it will amount to interference with the freedom of speech. Subsequently Lok Sabha has also held that it will amount to contempt of court or breach of privilege if any suit is filed in court for what is said on the floor of the house. 

The Supreme court in the case of Tej Kiran held that “once it is proved that parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceeding in any court”.

B.) PUBLICATION UNDER PARLIAMENTARY AUTHORITY-All person connected with the publication of proceeding of a House are protected in the same is made under the authority of the house itself. The immunity of publication does not apply to publishing of secret meeting of the house of parliament or legislature. It should also be kept in mind that the immunity extends only to a “report” of the proceedings of the house and not to any “article” or “comment” on the proceedings.

C.) RULE MAKING POWER – The constitution of India has given power to parliament to make its own rule but that should be subject to provision of the constitution. Therefore parliament is not authorised to enact any laws for its own proceedings within the house, the law should not infringe any provision of the constitution otherwise it will be held as void as per Art. 118(1) of constitution.

D.)INTERNAL AUTONOMY - The internal autonomy is required for both the houses in order to work effectively without any outside interference. The houses have right to maintain their own internal issues to deal among themselves without any interference from any statutory or private authority. The internal autonomy in terms denotes the immunity to the houses of parliament and to its members as well. Hence in support of Art.122(2) no officer of parliament is empowered by constitution, subject to jurisdiction of any court of law in India in two cases-

1. to regulate the procedure or conduct of business
2. to maintain order in parliament.

Thus it can be inferred that the houses of parliament had freedom from the judicial control of the nation.

Held in the case of Surendra that the court does not interfere with the functioning of the speaker inside the house in the matter of regulating of conduct of business therein by virtue of his power vested on him. But it is also pronounced by Indian judiciary in number of cases from various decades that the court can scrutinise the proceeding of the house on the grounds of illegality and unconstitutionality. Since it is the duty of the Judiciary of our nation to keep legislature and Executive in their control.

This all are the explicit provision which are mentioned in our constitution of India. But despite this privileges there are various implied provision in order to safe guard the functioned of parliament. In Constitution Assembly Debate it is held that the constitution makers wanted to adopt all the privileges which was mentioned by the Dicey ( a renounced British Jurist) but it was held that it will take another 2- 3 days to cover all of this and in order to decrease its length this all were not inserted.

Whenever it comes to privileges the biggest question which arises in front of us is why every time when privileges are discussed, the Privileges of Britain is taken into consideration. The answer to my question is that because it is realised that the Britain enjoys the largest and the widest privileges as compared to whole world and hence it the British houses which are taken care of.

The Art. 105 need to be take n into consideration at this point of time. When it comes to power and privileges of the house of parliament its sub clause 3 reads as:-

In article 105 of the Constitution, in clause (3), for the words "shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution", the words, figures and brackets "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" shall be substituted.

The constitution makers themselves wanted that the privileges of United Kingdom should be taken into consideration.

But every now and then the approach is largely criticized. It is said that there is one major difference that exist within India and United Kingdom and that need to be taken consideration.

Unlike British Parliament, Indian Parliament is not sovereign. It is the Constitution which is supreme and sovereign and Parliament will have to act within the limitations imposed by the Constitution. This is a mark of distinction between British Parliament and the Indian Parliament. British Parliament is sovereign. “One of the hallmarks of such sovereignty is the right to make or unmake any law which no court or body or any person can set aside or override.” On the other hand, the Indian Parliament is a creature of the Constitution and its powers, privileges and obligations are specified and limited by the Constitution. A legislature created by a written Constitution must act within the ambit of its power as defined by the Constitution and subject to the limitations prescribed by the Constitution. Any act or action of the Parliament contrary to the constitutional limits will be void.

A.7 In Special Reference No. 1, a bench of seven judges observed : "In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England is having a right to override or set aside the legislation of Parliament; and that the right or power of Parliament extends to every part of the Queen's dominion. On the other hand, the essential characteristic of federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each other’s". The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers."

There exist the balance between the two institution established on the following lines :-
1.The court recognize the common law privileges.
2.A new privilege can be created for the house only by the law passed by the parliament and not merely by resolution of one house.
3.Whether the particular privilege claimed by the house exists or not is the question for the court to decide. The court has a right to determine the nature and limits of parliamentary privilege.
4. The question whether the particular privilege is infringes or not in a particular case is for the house to decide.

When we look at the present position with an overview it appears to us that when the particular house holds and individual guilty by making him imprisonment by a speaking warrant mentioning the specific grounds then the court can scrutinize whether the particular act constitute contempt or breach of privilege or not. But when the house does not mentions the ground of breach of privilege then the court fails to help in any manner and can neither ask the house for same.

In India the house of parliament may claim privilege if :-
1. If constitution grants it specifically
2. It has been created by law of parliament
3. It was enjoyed by the house under Art.105(3)

The court in order to solve the undefined power of privilege has once introduced the amendment in the constitution in Art. 105(3) which helps to channelize the privileges claim by parliament and helps the court to determine whether the particular privilege exist or not, and to prevent the house from making various wage privileges.

The court has evolved the proper doctrine to determine the privileges of the parliament that the Indian parliament can adopt. The Doctrine of Pen, Ink and Indian rubber theory. In Hardwari Lal v. The Election Commission of Indiacourt explained this Doctrine. Justice Sabharwal made the following observation:-

“I am of the view that it is essentially tautologies to first read something into the Constitution suggested on behalf of the respondents, one is to first read the King, the Queen, the House of Lords or the Acts of Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground that by the very nature of things they cannot form part of a Republican Constitution. The pen and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber theory whereby one first writes something entirely alien to the Constitution within it and the next moment proceeds to rub it off. It is well-settled that when a statute includes something in it by a reference to another provision then only that can be deemed to be included which is compatible with the parent provision. To my mind, therefore, the plain method of construing Article 194(3) is the usual and the settled one of not reading something into it which is glaringly anomalous, unworkable and irrational."

As to borrowing examples and cases of privileges from the Constitution of other countries, the Supreme Court in M.P.V. Sundaramier & Co. v. State of Andhra Pradesh , cautioned:

"The threads of our Constitution were no doubt taken from other Federal Constitutions but when they were woven into the fabric of our Constitution their reach and their complexion underwent changes. Therefore, valuable as the American decisions are as showing how the question is dealt with in sister Federal Constitution great care should be taken in applying them in the interpretation of our Constitution."

Thus it can be successfully conclude that in order to determine the privileges the house cannot blindly adopt the same that exist In Britain but has to decide and scrutinize weather it suits the Indian Democracy and does not offend the Republic characteristic of the nation.
# M.P. Jain 5th edition,pg.85.
# Oxford dictionary,10th edition,pg.1138.
# Raja Ram Pal v Speaker, Lok Sabha & Ors, Pg 3 of 113 , Available at Indian kanoon.com.
# Redlich 1, Pg 46 ,Edition 17th quoted in May, Parliamentary Practice.
# “Treatise on The Law, Privileges, Proceedings and Usage of Parliament”, Edition 23rd ,Pg 75.
# M.P.jain, Edition 5th,Pg. 85.
# 3 State Trial , 294.
# XII Report of committee of Privilege , Rajya Sabha, Dec. 6, Pg. 68.
# Tej Kiran Jain V Sanjiva Reddy AIR 1970 SC 1573.
# M.P.Jain, Edition 5th , Pg 89.
# Surendra V Nabakrishna AIR 1958 Ori 168.
# A.J. Faridi V chairman, U.P. Legislative Council(AIR 1963 All. 75), Syed Abdul V state of west Bengal Leg. Ass.(AIR 1966 Cal.363)(This are some of the examples)
# (1965) 1 S.C.R. 413
# (1977) (2) Punj. & Har. 269
# AIR 1958 SC 468; Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232; Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1406

Authors contact info - articles The  author can be reached at: Tapanshugehlot@legalserviceindia.com

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