PRIVILIGES
UNDER THE CONSTITUTION OF INDIA:
Parliamentary Privileges (also absolute privilege) is a legal immunity enjoyed
by members of certain legislatures, in which legislators are granted protection of civil or
criminal liability for actions done or statements made related to one's duties
as a legislature. It is common in countries whose constitutions are
based on the Westminster system. A similar mechanism is known as parliamentary immunity.
Parliamentary privilege is controversial because of its
potential for abuse; a member can use privilege to make damaging allegations
that would ordinarily be discouraged by defamation laws, without first
determining whether those allegations have a strong foundation.
The term
parliamentary privileges are used in Constitutional writings to denote both
these types of rights and immunities. Sir Thomas Erskine May has defined the
expression Parliamentary privileges as follows: “The sum of the peculiar rights
enjoyed by each house collectively is a constituent part of the High Court of
Parliament, and by members of each house of parliament individually, without
which they cannot discharge their functions, and which exceed those possessed
by other bodies or individuals”[1].
The term
"parliamentary privilege" is essentially used to describe the law
relating to the privileges or immunities of Parliament and includes its powers
to punish for "contempt" or breach of privilege. The privileges,
whether of Parliament itself as a collective body or of the individual members,
are intended to enable them to carry out their constitutional functions of
legislating, debate and enquiry effectively, independently and without
interference or obstruction from any quarter. Since, India has these privileges
enshrined in its Constitution, it would be appropriate to approach the topic
with reference to the relevant constitutional provisions. The law on the
subject in other countries is an important aid for understanding the limits and
extent of the law of privileges.
Article 105 of
the Constitution relating to the "Powers, privileges and immunities of
Parliament and its members" and Article 194 relating to the State
Legislatures and their members contain certain enumerated privileges and powers
while leaving room for a large number of uncodified and unenumerated privileges
to continue. Reference to certain other provisions like Articles 118, 121, 122,
208, 211 and 361-A, which also have a bearing on the subject, are made at the
appropriate places[2].
According to
Erskine May, "Parliamentary privilege is the sum of the peculiar rights
enjoyed by each House collectively 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[3]. 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.
When any of these rights and immunities is disregarded or attacked,
the offence is called a breach of privilege and is punishable under the law of
Parliament. Each House also claims the right to punish as contempt’s actions
which, while not breaches of any specific privilege, obstruct or impede it in
the performance of its functions, or are offences against its authority or
dignity, such as disobedience to its legitimate commands or libels upon itself,
its Members or its officers.[4]"
"Generally speaking, any act or omission which obstructs or
impedes either House of Parliament in the performance of its functions, or
which obstructs or impedes any Member or officer of such House in the discharge
of his duty, or which has a tendency, directly or indirectly, to produce such
results may be treated as a contempt even though there is no precedent of the
offence.[5]"
In interpreting
these privileges, therefore, regard must be had to the general principle that
the privileges of Parliament are granted to members in order that "they
may be able to perform their duties in Parliament without let or hindrance.[6]" They apply to individual members "only
in so far as they are necessary in order that the House may freely perform its
functions. They do not discharge the member from the obligations to society
which apply to him as much and perhaps more closely in that capacity, as they
apply to other subjects."
Privileges of Parliament do not place a Member of Parliament on a footing
different from that of an ordinary citizen in the matter of the application of
laws, unless there are good and sufficient reasons in the interest of
Parliament itself to do so.
The Constitution specifies some of the privileges. They are freedom
of speech in Parliament[7]; immunity to a member from
any proceedings in any court in respect of anything said or any vote given by
him in Parliament or any committee thereof[8]; immunity to a person from
proceedings in any court in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or
proceedings[9].
Courts are prohibited from inquiring into the validity of any proceedings in
Parliament on the ground of an alleged irregularity of procedure[10]. No officer or Member of
Parliament empowered to regulate procedure or conduct of business or to
maintain order in Parliament can be subject to a court's jurisdiction in
respect of exercise by him of those powers[11]. No person can be liable
to any civil or criminal proceedings in any court for publication in a newspaper
of a substantially true report of proceedings of either House of Parliament
unless the publication is proved to have been made with malice. This immunity
is also available for reports or matters broadcast by means of wireless
telegraphy[12].
This immunity, however, is not available to publication of proceedings of a
secret sitting of the House[13].
In other
respects, the powers, privileges and immunities of each House of Parliament and
of the members and committees thereof 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, its members and committees immediately before the coming into force of
section 15 of the Constitution (Forty-fourth Amendment) Act, 1978[14].
The framers of
the Constitution had provided for the same powers and privileges for members,
etc. as were possessed and enjoyed by the House of Commons at the commencement
of the Constitution. The reference to the House of Commons in clause (3) of
article 105 was omitted by the Constitution (Forty-fourth Amendment) Act, 1978.
Since, however, no law defining the privileges has been made by Parliament so
far, in actual practice; the position in this regard remains the same as it
existed at the commencement of the Constitution.
Apart from the privileges specified in the Constitution, the Code of
Civil Procedure, 1908, provides for freedom from arrest and detention of
members under civil process during the continuance of the meeting of the House
or of a committee thereof and forty days before its commencement and forty days
after its conclusion[15].
The House has a right to receive immediate information of the
arrest, detention, conviction, imprisonment and release of a member on a
criminal charge or for a criminal offence[16].
Members or officers
of the House cannot be compelled to give evidence or to produce documents in
courts of law, relating to the proceedings of the House without the permission
of the House.
Members or
officers of the House cannot be compelled to attend as witnesses before the
other House or a House of a State Legislature or a committee thereof without
the permission of the House and without the consent of the member whose
attendance is required.
In addition to
the above mentioned privileges and immunities each House also enjoys certain
consequential powers necessary for the protection of its privileges and
immunities. These powers are: to commit persons, whether they are members or
not, for breach of privilege or contempt of the House; to compel the attendance
of witnesses and to send for persons, papers and records; to regulate its
procedure and the conduct of its business; to prohibit the publication of its
debates and proceedings[17] and to exclude strangers.
Parliamentary privilege is the sum of the
peculiar rights enjoyed by each House collectively as a constituent part of
Parliament and by members of each House individually, without which they could
not discharge their functions, efficiently and effectively, and which exceed
those possessed by other bodies or individuals. When any of these rights and
immunities, both of the members, individually, and of the assembly in its
collective capacity which are known by the general name of privileges, are
disregarded or attacked by any individual or authority, the offence is called a
breach of privilege, and is punishable under the law of Parliament.
Articles 105/194 of the Constitution deal
with the powers, privileges and immunities of Members of Parliament/State
Legislatures and their House, Members and Committees. Each House also claims
the right to punish actions which, while not breaches of any specific
privilege, are offences against its authority or dignity, such as disobedience
to its legitimate commands or libels upon itself. its officers or its members.
Such actions, though called "breaches of privilege" are more properly
distinguished as "contempt’s".
The rules,
conventions and practices relating to parliamentary privilege regulate the
relationship between the three arms of government; the Executive, the
Parliament and the courts. Departments and agencies form part of the
Executive arm of government and because of this parliamentary privilege is
relevant to all of our working lives.
Parliamentary privilege developed to allow Parliament to proceed
with the business of making legislation and reviewing the activities of the
Executive without undue interference.
OBJECTIVES
OF RESEARCH
The objectives keeping in mind which this research paper has been
undertaken are as follows:
a. To
trace the origin of corruption in India;
b. To
determine the laws of protection followed in India;
c. To
study the various legal provisions relating to the same;
d. To
study the origin of Parliamentary Privileges in India;
e. To
determine the abuse of Parliamentary Privileges by the Members of Parliament;
f. To
study the laws of various countries relating to the same;
g. To
determine whether the any amendment should be made in Prevention of Corruption
Act, 1988 so as to curtail the misuse of privileges.
h. To
give suggestions as to how the law relating to corruption in India can be
improved.
HYPOTHESIS
“There
is inadequacy of laws dealing with corruption within the Parliament in India”.
Concept of Parliamentary
privileges was inculcated by the drafters of the Constitution through the
British Constitution. The objective was to immune members from the hindrances
so that they can carry out their work. In recent times corruption scams and
cases have shown that privileges are been used as shield to guard members from
the corrupt practices which they carry out inside the Parliament. Neither
Constitution nor the Prevention of Corruption Act, 1988 deals with this
problem.
RESEARCH METHODOLOGY AND SOURCES
The research methodology adopted for the present research paper
shall be Doctrinal research (secondary). An in-depth analysis of comparative
provisions relating to aviation sector around the world would be briefly
discussed in order to distinguish/ comprehend the above mentioned countries
situation vis-à-vis the Indian aviation sector.
While using doctrinal method of research, I shall be placing
reliance on various books written by various jurists. At the same time, I shall
also take into consideration various articles published on my research topic.
Reference shall also been made to newspaper articles.
CHAPTERISATION SCHEME:
INTRODUCTION:
It talks about parliamentary privileges that are
guaranteed to the Members of Parliament and also explains how corruption acts
are breathing in the shield of the privileges laid down by the Constitution of
India.
1.
ANTI
– CORRUPTION LAWS IN INDIA:
Chapter
1 explains the laws dealing with corruption in India. This chapter talks about
emergence of corruption laws during the British Era and also talks about
developments that were made during the early years of independent India.
2.
STATUS
QUO ON CORRUPTION:
Chapter
2 briefly explains the provisions of The Prevention of Corruption Act and also
talks about the salient features of The Prevention of Corruption (Amendment)
Bill, 2008.
3.
PARLIAMENTARY
PRIVILEGES IN INDIA:
Chapter
3 deals with objective of granting privileges to Members of Parliament and this
chapter also explains various privileges which are granted to the Members of
Parliament.
4.
ANALYSIS
OF CORRUPTION CASES:
Chapter
4 discusses important cases which have been decided by the Hon’ble Supreme
Court relating to the issue of misuse of privileges by the Members of
Parliament. This Chapter also lays down light on the recent scams inside the
Parliament.
5.
INTERNATIONAL
PROSPECTIVE:
Chapter
5 explains the law of various countries and laws adopted by them to overcome
the misuse of the Privileges by the Members of Parliament.
SUGGESTION/
CONCLUTION:
It talks about the problem which has cropped up and also
lays down the solution to resolve the misuse of privileges. It also lays down
the mush needed amendment in the Constitution and the prevention of Corruption
Act, 1988.
[2]
Joshi, K.C., “Parliamentary Privileges : A Sword or Shield”, Journal of Indian Law Institute, Vol
42, Apr – Dec, (2000), Pp. 58-68.
[3]
Ibid.
[4] <http://rajyasabha.gov.in/rajya/19/94/i5/94I50A01.htm
>, <last visited on 1st of Feb, 2009>.
[5] Ibid.
[6] Kaul & Shakdher,” Report of the Committee of Privileges in Captain
Ramsay Case, House of Commons, 164”, para. 19, (1939-40), p. 193).
[7]
Article 105 (1): Subject to the provisions of this Constitution and to the
rules and standing orders regulating the procedure of the Parliament, there
shall be freedom of speech in Parliament.
[8]
Article 105 (2):No member of Parliament shall be liable to proceedings in any
court in respect of anything said or any vote given by him in Parliament and or
any committee thereof, and no person shall be so liable in respect of
publication by or under the authority of either house of Parliament of any
report, papers, votes or proceedings.
[9] Ibid.
[10] Article 121: No discussion shall take place in Parliament with
respect to the conduct of any Judge of Supreme Court or of a High Court in the
discharge of his duty except on a motion for presenting an address to the
President praying for the removal of the Judge as hereinafter provided.
[11] Article 122 (2): No officer or the member of Parliament in whom
power is vested by or under this Constitution for regulating procedure or the
conduct of business, or for maintaining order, in Parliament shall be subject
to the Jurisdiction of any Court in respect of the exercise by him of those
powers.
[12] Article 361: Protection of President and Governor and Rajpramukhs.
[13] Article 361 A (1), proviso: Provided that the conduct of the
President may be brought under the preview by any Court, Tribunal or body
appointed or designated by either House of Parliament for the investigation of
the charge under Article 61.
[14] Article 105 (3): in other respects, the power, privileges and
immunities of each House, shall be such as from each House, shall be such as
may from time to time be defined by the Parliament by the law, and. Until so
defined, shall be those of that House and of its members and committees
immediately coming into the force of section 15 of the Constitution
(Forty-Fourth Amendment) Act, 1978.
[15] Section 135 A, Civil Procedure Code, 1908.Exemption of members of
Legislative bodies from arrest and detention under civil process.
[17] M S M Sharma v. Krishna Sinha, AIR 1959 SC 395.
