CONCEPT OF ‘LEGISLATIVE PRIVILEGES’:- Privileges are attached to House of
Legislature collectively, or to its members individually, with a view to enabling the house
to Act and discharge its high functions effectively, without fear or favour, or without any
hindrance, interference or obstruction from any quarter.
The Indian Constitution makers appreciated the need to confer certain privileges
to the legislatures in India. The Constitution specifically defines only a few privileges
but the rest of the privileges of the legislatures in India shall be those which were enjoyed
by the House of Commons on the date of commencement of the Constitution.
The relevant provisions in the Constitution defining legislative privileges are
Articles 105 and 194. Article 105 relates to Parliament while Article 194 relates to the
State Legislature. Both these provisions are couched practically in similar language.
Article 105 as it stood prior to the Constitution (42nd Amendment) Act, 1976 ran as
follows:
(1) Subject to the provisions of this Constitution….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 any things 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 any report, papers, 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 the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the commencement of this
Constitution.
(4) The provisions of clause (1), (2) and (3) shall apply in relation to person 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 therefore as they
apply in relation to members of Parliament.
PARLIAMENTARY PRIVILEGES AND THE PRESS: Clause (1) of Article
105 provides for freedom of speech of a member in a House of Parliament. A full
and free debate is of the essence of Parliamentary Democracy. This privilege has
given rise to two other privileges of the House, viz., (i) to hold meetings of the
House in camera and thus exclude strangers from listening to the debates in the
House, and (ii) prohibiting the publication of the debates and proceedings held
within the House.
Clause (2) of Article 105 confers an immunity on members of a House of
Parliament as well as on the publications made under the authority of the House
from any legal proceedings.
It is clause (3) of Article 105, which is crucial for our present purpose.
Before, 1976, this clause provides that a House could enjoy such privilege as were
defined by Parliament (or a State legislature) by law and until so defined a Hose
would have the same privileges as the House of Commons at the commencement
of the Constitution. Thus, the legislative privileges which, by and large affected
the press were the ones which were claimed by a legislative House in India under
Article 105(3) or Article 194(3).
In 1976, Article 105(3) underwent a change by Forty Second Amendment
Act. Later in 1978 another amendment was made in Article 105(3), which today
stands, follows as under:
“…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 (44th
Amendment) Act, 1978.”
Similarly, Article 194(3) also underwent changes as noted above.
The purpose of these amendments was to drop from the constitution any
reference to the House of Commons.
POWER TO PUNISH FOR CONTEMPT –KEYSTONE OF
PARLIAMENTARY PRIVILEGE:-
The most potent weapon in the hands of a House of Legislature to enforce
is privileges it is the power to punish for its contempt, or for “breach of
privilege”. A House can punish anyone, whether a member or any outsider, for
its contempt or breach of privilege. The difficulty here is that the grounds on
which a person can be held guilty of contempt of a House are vague uncertain and
indefinite and have not been specified anywhere.
Generally speaking, contempt of a House is committed when any Act or
omission impedes or obstructs a House in the discharge of its functions, or which
obstructs or impedes any member of the officer of the House in the discharge of
his duties or which has a tendency directly or indirectly to produce such result.
Committee of Privileges:- Each House of Parliament has a Committee of
Privileges. The Committee is to determine the reference to the Acts of each case
whether a breach of privilege is involved. It can call oral and documentary
evidence. The report of the Committee is presented to the House concerned,
which takes appropriate action on it.
FUNDAMENTAL RIGHT AND PRIVILEGES:
There has been some confusion on the question whether the Fundamental
Rights control in any way the privileges which a House enjoy under Article
105(3) and which is to prevail in case of a conflict between such a privilege and
Fundamental Rights? In Gunupati v. Nafisul Hassan (AIR 1954 SC 836), the
Supreme Court ordered the release of the Editor of “Bitz”, arrested on a charge of
contempt of the House under the Speaker’s warrant, on the ground that he had not
been produced before a Legislature within 24 hrs of his arrest as required by
Article 22(2). This created the impression that the Fundamental Rights would
control Parliamentary privileges.
In the Searchlight case(i.e., M.S.M. Sharma V. Sinha, AIR 1959 SC
395), the Supreme Court held by majority that the privileges enjoyed by a House
of Parliament under Article 105(3) were not subject to Article 19(1)(a) and,
therefore, a House was entitled to prohibition contravenes the Fundamental Right
of Speech and Expression under Article 19(1). The Gunupati(supra) was held
not binding as it was not a considered opinion on the subject. The court observed
that Article 105(3) was not declared to be “subject to the Constitution” and
therefore it was as supreme as provision of the Constitution including the
Fundamental Rights.
Reconsidering the question of mutual relationship between the
Fundamental Rights and legislative privileges in Keshav Singh v. Speaker
Legislative Assembly (1965 SC 745), the Supreme Court held that the
Searchlight case excluded only Article 19(1)(a) and not other fundamental Rights
from controlling the legislative privilege. It held that Article 21 would apply to
Parliamentary privileges and a person would be free to come to the court for a
writ of habeas corpus on the ground that he had been deprived of his personal
liberty not in accordance with law but for capricious or malafide reason.
Thus, the position appears to be that it is wrong to suppose that no
Fundamental Right applies to the area of legislative privileges. Some
Fundamental Right like Art. 19(1)(a) do apply. Perhaps Art. 21 do apply, while
the position with regard to others, e.g. Arts. 22(1) and (2) is not clear. There is,
however, no doubt that if Parliament were to Act would not be free from the
controlling effect of the Fundamental Right. Such provisions of the law as
contravene fundamental rights provisions of the law as contravene fundamental
rights would be invalid(C. Subra Manium v. Speaker L.A. 1969 Mad. 10).
PRIVILEGES AND THE COURTS:-
The question of Parliament and Court relationship often arises in privilege
matters. This involves several postulates: (1) who decides whether a particular
privilege claimed by a House exists or not; (2) When a privilege is held to exist, is
a House the final judge of how, in practice, that privilege is to be exercised; (3)
can be courts go into the question of validity or propriety of committal by a House
for its contempt or breach of privilege?
In England, there had been a good deal of controversy in the past between
the House of Commons and the Courts on these questions. The era of legislative-
judiciary conflict in matters of privileges is now past in England. A balance
between the two had now been established along the following lines: (1) the
courts recognize the common law privileges; (2) a new privilege can be created
for the House only by a law passed by Parliament and not merely by a resolution
of one House, (3) whether a particular privilege claimed by a House exists or not
is a question for the courts to decide.
So far as India is concerned, a House of Parliament may claim a privilege
if (i) the Constitution grants it specially, or (ii) it has been created by a law of
Parliament; or (iii) it was enjoyed by the House under Art. 105(3). This naturally
brings the Courts into the area of Parliamentary privileges. When a question
arises whether a particular privilege exist or not, it is for the courts to give a
definite answer by finding out whether it calls under any of the sources mentioned
above. In a number of cases the courts have decided the question whether a
particular privilege claimed by a House exist or not. (The Searchlight’s case
(supra), Yashwant Rao v. M.P. Legislative Assembly, AIR 1967 M.P. 95) of
course, when once, it is held that a particular privilege exist then it is for the
House to judge the occasinand the manner of its exercise and courts would not sit
in judgment over the way the House has exercised its privilege.
Each House of Parliament in India has a power to commit a person for its
contempt. But the position remains vague on the question whether such
committal is immune from judicial scrutiny or not. The question whether courts
can interfere with the power of a House to commit for its contempt arose most
dramatically in 1964 in the Keshav Singh’s case (supra), where the U.P.
Assembly claimed an absolute power to commit a person for its contempt and a
general warrant issued by it to be conclusive and free from judicial scrutiny. This
case may be regarded as the high water marks of legislative judiciary conflict in a
privilege matter in which the relationship between the two was brought to a very
critical point, and the whole episode was reminiscent of the conflict between the
House of Commons and the Judiciary in England in 1689 when two judges were
committed by the House.
The brief facts of the Keshav Singh’s case are that Keshav Singh
published a pamphlet against a member of State Leg. Assemb. House adjudged
him guilty of contempt and sentenced him to be reprimanded. On March 14,
1964, when the Speaker administered reprimand, he misbehaved. The House
punished him for seven days imprisonment. On March, 19, 1964, Solomon,
Advocate moved an habeas corpus petition under Article 226 which was heard by
two judges of the Allahabad High Court on behalf of Keshav Singh. It was
alleged that his detention was illegal as the House had no authority to do so. He
had not been given an opportunity to defend himself and that his detention as
malafide and against natural justice. The court granted interim bail and order
released Keshav Singh. The House resolved that Solomon, Adv. and the two
judges who passed the order had committed contempt of the House and they be
brought before the House. The Judges moved petitions under Art. 226,
whereupon the full Bench of the Allahabad High Court stayed the implementation
of the resolution of the House. The House then passed a clarificatory resolution
that its earlier resolution had given rise to misgivings that concerned persons
would be deprived of an opportunity of explanation, and that the concerned
judges were put under obligation to appear before the House and explain why the
House should not proceed against them for its contempt. This resolution was
against stayed by the High Court. Thus, there emerged a complete legislative
judiciary deadlock. The President of India, then referred the matter to the
Supreme Court for opinion under Art. 143. By a majority of 6:1, the Supreme
Court held that the two judges had not committed any contempt of the legislature
by granting bail. Art. 211 debars the State Legislature (Art. 121 in case of
Parliament) from discussing the conduct of a High Court judge. Therefore, the
Legislature cannot take any action against a High Court Judge for anything done
in the discharge of his duties. The existence of a fearless and independent
judiciary being the basic foundation of the constitutional structure in India, no
Legislature has power to take action against a judge for its contempt alleged to
have been committed by the judge in the discharge of his duties. The Court also
held that the right of the citizens to move the judicature and the right of the
Advocates to assist that process must remain uncontrolled by Art.105(3). It is
necessary to do so enforcing the Fundamental Rights and for sustaining the Rule
of law in the country.
CODIFICATION OF PRIVILEGES AND PREVENTION OF ITS MISUSE:
In the wake of Keshav Singh’s case(supra), two contradictory ideas were
brought into bold relief. One the one hand, the Speakers wanted the Constitution
to be amended so as to conclude an absolute power to a House to commit any one
for its contempt. On the other hand, there arose a demand for codification of
legislative privileges.
In its Fourth Report the Privileges Committee of the Lok Sabha has
recommended against any legislation to codify Parliamentary privileges. In the
new political culture, the Parliamentary privileges have become a multi-headed
monster. The law of Parliamentary privileges has become a weapon in the hands
of the ruling parties, misused in many ways for personal, party and partisan ends
through their majorities in the Houses and Committees.
The most fundamental privilege of the legislators which is mentioned in
the Constitution itself is that of the freedom of speech and vote in the discharge of
one’s duties as a legislator. In all respects, the Constitution has provided for each
House laying down its privileges by law and until such laws are made, the
position in this regard could be the same as in the British House of Commons. By
making this provision for regulation of privileges by law the Constitution makers
made it clear that they expected the privileges to be subordinate to the
fundamental freedoms of the individual and amenable to judicial review.
Real democracy requires three basic aspects, i.e., accurate information,
equal and effective participation of all citizens in day to day governance,
transparency and accountability on part of those holding public office.
Art. 19 reveals about the freedom of press, which also includes right to
information. India is a democratic country and both these rights are the basic
components of democracy. According to Article 105, which protects privileges of
Parliament always curtailed the wings of Art. 19 . The whole scenario is changed
after the enactment of the Right to Information Act, 2002. The RTI Act is
recognized under Art. 19 and the privileges under Art. 105.
Member of Legislature should not forget that they are not above the
people. How can they be a law into themselves. To prevent ugly situations
appearing again and again in the name of protecting Parliamentary privileges,
the only honest and straightforward course would be for Parliament and State
Legislature to abide by the constitutional provision and codify their privileges
by law.
Legislature collectively, or to its members individually, with a view to enabling the house
to Act and discharge its high functions effectively, without fear or favour, or without any
hindrance, interference or obstruction from any quarter.
The Indian Constitution makers appreciated the need to confer certain privileges
to the legislatures in India. The Constitution specifically defines only a few privileges
but the rest of the privileges of the legislatures in India shall be those which were enjoyed
by the House of Commons on the date of commencement of the Constitution.
The relevant provisions in the Constitution defining legislative privileges are
Articles 105 and 194. Article 105 relates to Parliament while Article 194 relates to the
State Legislature. Both these provisions are couched practically in similar language.
Article 105 as it stood prior to the Constitution (42nd Amendment) Act, 1976 ran as
follows:
(1) Subject to the provisions of this Constitution….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 any things 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 any report, papers, 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 the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the commencement of this
Constitution.
(4) The provisions of clause (1), (2) and (3) shall apply in relation to person 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 therefore as they
apply in relation to members of Parliament.
PARLIAMENTARY PRIVILEGES AND THE PRESS: Clause (1) of Article
105 provides for freedom of speech of a member in a House of Parliament. A full
and free debate is of the essence of Parliamentary Democracy. This privilege has
given rise to two other privileges of the House, viz., (i) to hold meetings of the
House in camera and thus exclude strangers from listening to the debates in the
House, and (ii) prohibiting the publication of the debates and proceedings held
within the House.
Clause (2) of Article 105 confers an immunity on members of a House of
Parliament as well as on the publications made under the authority of the House
from any legal proceedings.
It is clause (3) of Article 105, which is crucial for our present purpose.
Before, 1976, this clause provides that a House could enjoy such privilege as were
defined by Parliament (or a State legislature) by law and until so defined a Hose
would have the same privileges as the House of Commons at the commencement
of the Constitution. Thus, the legislative privileges which, by and large affected
the press were the ones which were claimed by a legislative House in India under
Article 105(3) or Article 194(3).
In 1976, Article 105(3) underwent a change by Forty Second Amendment
Act. Later in 1978 another amendment was made in Article 105(3), which today
stands, follows as under:
“…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 (44th
Amendment) Act, 1978.”
Similarly, Article 194(3) also underwent changes as noted above.
The purpose of these amendments was to drop from the constitution any
reference to the House of Commons.
POWER TO PUNISH FOR CONTEMPT –KEYSTONE OF
PARLIAMENTARY PRIVILEGE:-
The most potent weapon in the hands of a House of Legislature to enforce
is privileges it is the power to punish for its contempt, or for “breach of
privilege”. A House can punish anyone, whether a member or any outsider, for
its contempt or breach of privilege. The difficulty here is that the grounds on
which a person can be held guilty of contempt of a House are vague uncertain and
indefinite and have not been specified anywhere.
Generally speaking, contempt of a House is committed when any Act or
omission impedes or obstructs a House in the discharge of its functions, or which
obstructs or impedes any member of the officer of the House in the discharge of
his duties or which has a tendency directly or indirectly to produce such result.
Committee of Privileges:- Each House of Parliament has a Committee of
Privileges. The Committee is to determine the reference to the Acts of each case
whether a breach of privilege is involved. It can call oral and documentary
evidence. The report of the Committee is presented to the House concerned,
which takes appropriate action on it.
FUNDAMENTAL RIGHT AND PRIVILEGES:
There has been some confusion on the question whether the Fundamental
Rights control in any way the privileges which a House enjoy under Article
105(3) and which is to prevail in case of a conflict between such a privilege and
Fundamental Rights? In Gunupati v. Nafisul Hassan (AIR 1954 SC 836), the
Supreme Court ordered the release of the Editor of “Bitz”, arrested on a charge of
contempt of the House under the Speaker’s warrant, on the ground that he had not
been produced before a Legislature within 24 hrs of his arrest as required by
Article 22(2). This created the impression that the Fundamental Rights would
control Parliamentary privileges.
In the Searchlight case(i.e., M.S.M. Sharma V. Sinha, AIR 1959 SC
395), the Supreme Court held by majority that the privileges enjoyed by a House
of Parliament under Article 105(3) were not subject to Article 19(1)(a) and,
therefore, a House was entitled to prohibition contravenes the Fundamental Right
of Speech and Expression under Article 19(1). The Gunupati(supra) was held
not binding as it was not a considered opinion on the subject. The court observed
that Article 105(3) was not declared to be “subject to the Constitution” and
therefore it was as supreme as provision of the Constitution including the
Fundamental Rights.
Reconsidering the question of mutual relationship between the
Fundamental Rights and legislative privileges in Keshav Singh v. Speaker
Legislative Assembly (1965 SC 745), the Supreme Court held that the
Searchlight case excluded only Article 19(1)(a) and not other fundamental Rights
from controlling the legislative privilege. It held that Article 21 would apply to
Parliamentary privileges and a person would be free to come to the court for a
writ of habeas corpus on the ground that he had been deprived of his personal
liberty not in accordance with law but for capricious or malafide reason.
Thus, the position appears to be that it is wrong to suppose that no
Fundamental Right applies to the area of legislative privileges. Some
Fundamental Right like Art. 19(1)(a) do apply. Perhaps Art. 21 do apply, while
the position with regard to others, e.g. Arts. 22(1) and (2) is not clear. There is,
however, no doubt that if Parliament were to Act would not be free from the
controlling effect of the Fundamental Right. Such provisions of the law as
contravene fundamental rights provisions of the law as contravene fundamental
rights would be invalid(C. Subra Manium v. Speaker L.A. 1969 Mad. 10).
PRIVILEGES AND THE COURTS:-
The question of Parliament and Court relationship often arises in privilege
matters. This involves several postulates: (1) who decides whether a particular
privilege claimed by a House exists or not; (2) When a privilege is held to exist, is
a House the final judge of how, in practice, that privilege is to be exercised; (3)
can be courts go into the question of validity or propriety of committal by a House
for its contempt or breach of privilege?
In England, there had been a good deal of controversy in the past between
the House of Commons and the Courts on these questions. The era of legislative-
judiciary conflict in matters of privileges is now past in England. A balance
between the two had now been established along the following lines: (1) the
courts recognize the common law privileges; (2) a new privilege can be created
for the House only by a law passed by Parliament and not merely by a resolution
of one House, (3) whether a particular privilege claimed by a House exists or not
is a question for the courts to decide.
So far as India is concerned, a House of Parliament may claim a privilege
if (i) the Constitution grants it specially, or (ii) it has been created by a law of
Parliament; or (iii) it was enjoyed by the House under Art. 105(3). This naturally
brings the Courts into the area of Parliamentary privileges. When a question
arises whether a particular privilege exist or not, it is for the courts to give a
definite answer by finding out whether it calls under any of the sources mentioned
above. In a number of cases the courts have decided the question whether a
particular privilege claimed by a House exist or not. (The Searchlight’s case
(supra), Yashwant Rao v. M.P. Legislative Assembly, AIR 1967 M.P. 95) of
course, when once, it is held that a particular privilege exist then it is for the
House to judge the occasinand the manner of its exercise and courts would not sit
in judgment over the way the House has exercised its privilege.
Each House of Parliament in India has a power to commit a person for its
contempt. But the position remains vague on the question whether such
committal is immune from judicial scrutiny or not. The question whether courts
can interfere with the power of a House to commit for its contempt arose most
dramatically in 1964 in the Keshav Singh’s case (supra), where the U.P.
Assembly claimed an absolute power to commit a person for its contempt and a
general warrant issued by it to be conclusive and free from judicial scrutiny. This
case may be regarded as the high water marks of legislative judiciary conflict in a
privilege matter in which the relationship between the two was brought to a very
critical point, and the whole episode was reminiscent of the conflict between the
House of Commons and the Judiciary in England in 1689 when two judges were
committed by the House.
The brief facts of the Keshav Singh’s case are that Keshav Singh
published a pamphlet against a member of State Leg. Assemb. House adjudged
him guilty of contempt and sentenced him to be reprimanded. On March 14,
1964, when the Speaker administered reprimand, he misbehaved. The House
punished him for seven days imprisonment. On March, 19, 1964, Solomon,
Advocate moved an habeas corpus petition under Article 226 which was heard by
two judges of the Allahabad High Court on behalf of Keshav Singh. It was
alleged that his detention was illegal as the House had no authority to do so. He
had not been given an opportunity to defend himself and that his detention as
malafide and against natural justice. The court granted interim bail and order
released Keshav Singh. The House resolved that Solomon, Adv. and the two
judges who passed the order had committed contempt of the House and they be
brought before the House. The Judges moved petitions under Art. 226,
whereupon the full Bench of the Allahabad High Court stayed the implementation
of the resolution of the House. The House then passed a clarificatory resolution
that its earlier resolution had given rise to misgivings that concerned persons
would be deprived of an opportunity of explanation, and that the concerned
judges were put under obligation to appear before the House and explain why the
House should not proceed against them for its contempt. This resolution was
against stayed by the High Court. Thus, there emerged a complete legislative
judiciary deadlock. The President of India, then referred the matter to the
Supreme Court for opinion under Art. 143. By a majority of 6:1, the Supreme
Court held that the two judges had not committed any contempt of the legislature
by granting bail. Art. 211 debars the State Legislature (Art. 121 in case of
Parliament) from discussing the conduct of a High Court judge. Therefore, the
Legislature cannot take any action against a High Court Judge for anything done
in the discharge of his duties. The existence of a fearless and independent
judiciary being the basic foundation of the constitutional structure in India, no
Legislature has power to take action against a judge for its contempt alleged to
have been committed by the judge in the discharge of his duties. The Court also
held that the right of the citizens to move the judicature and the right of the
Advocates to assist that process must remain uncontrolled by Art.105(3). It is
necessary to do so enforcing the Fundamental Rights and for sustaining the Rule
of law in the country.
CODIFICATION OF PRIVILEGES AND PREVENTION OF ITS MISUSE:
In the wake of Keshav Singh’s case(supra), two contradictory ideas were
brought into bold relief. One the one hand, the Speakers wanted the Constitution
to be amended so as to conclude an absolute power to a House to commit any one
for its contempt. On the other hand, there arose a demand for codification of
legislative privileges.
In its Fourth Report the Privileges Committee of the Lok Sabha has
recommended against any legislation to codify Parliamentary privileges. In the
new political culture, the Parliamentary privileges have become a multi-headed
monster. The law of Parliamentary privileges has become a weapon in the hands
of the ruling parties, misused in many ways for personal, party and partisan ends
through their majorities in the Houses and Committees.
The most fundamental privilege of the legislators which is mentioned in
the Constitution itself is that of the freedom of speech and vote in the discharge of
one’s duties as a legislator. In all respects, the Constitution has provided for each
House laying down its privileges by law and until such laws are made, the
position in this regard could be the same as in the British House of Commons. By
making this provision for regulation of privileges by law the Constitution makers
made it clear that they expected the privileges to be subordinate to the
fundamental freedoms of the individual and amenable to judicial review.
Real democracy requires three basic aspects, i.e., accurate information,
equal and effective participation of all citizens in day to day governance,
transparency and accountability on part of those holding public office.
Art. 19 reveals about the freedom of press, which also includes right to
information. India is a democratic country and both these rights are the basic
components of democracy. According to Article 105, which protects privileges of
Parliament always curtailed the wings of Art. 19 . The whole scenario is changed
after the enactment of the Right to Information Act, 2002. The RTI Act is
recognized under Art. 19 and the privileges under Art. 105.
Member of Legislature should not forget that they are not above the
people. How can they be a law into themselves. To prevent ugly situations
appearing again and again in the name of protecting Parliamentary privileges,
the only honest and straightforward course would be for Parliament and State
Legislature to abide by the constitutional provision and codify their privileges
by law.
