Parliamentary Privileges

What is a parliamentary privilege? What is the source of the parliamentary privileges? What are the different types of parliamentary privileges? Why it holds so much importance in Lok Sabha and Rajya Sabha? Are there any challenges that exist? Is there any need for further codification of them? Is there any role of the Supreme Court concerning these privileges? These are some of the questions we are going to deal with in the following article.

Parliamentary privileges in India are a set of rights, immunities, and exemptions enjoyed by the Houses of Parliament, their committees, and their members.

These privileges are essential for the Houses to perform their functions effectively without any interference, intimidation, or obstruction. Derived from the British legal system, these privileges are part of the Indian Constitution under Article 105 (about Parliament) and Article 194 (on State Legislatures).

Table of Contents

Parliamentary Privileges

Parliamentary privilege refers to rights, immunities, and exemptions enjoyed by MPs individually and collectively to discharge their functions responsibly.

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Source of the Privileges

• Article 105 for the Parliament and Article 194 for the State Legislature
• Various laws are made by Parliament
• Rules of both the Houses
• Parliamentary conventions
• Judicial interpretations

Different types of Parliamentary Privileges

Individual Privileges: These are the rights that each member of parliament has in his official capacity.

• For instance, MPs are free to speak their minds in the House, cannot be detained in civil proceedings 40 days before or after the start of the current session of Parliament, and are not required to serve on juries.
• During the session of the legislature, a member cannot be arrested. Additionally, members cannot be detained 40 days before or after the session’s beginning or end.
• Parliamentarians have a right to free speech inside the chambers. They are not subject to any legal action as a result of their statements made in the parliament or its committees. However, it is controlled by the guidelines.
• When Parliament is in session, they have the option to decline to provide testimony and appear as a witness in a case that is pending in court.

Collective Privileges: These are the collectively conferred privileges and are more generic.

• For instance, the right to publish documents, reports, and discussions and to forbid others from doing the same.
• Right to hold private meetings, the Right to be informed of members’ arrests and releases, and the authority to penalize for disrespect or violating a privilege.
• There can be no judicial procedure served without notifying the presiding officer.
• The Indian parliament has the right to keep outsiders out of its sessions.
• The parliamentary privilege also includes the houses’ private sessions.
• The two houses have the authority to establish regulations for their working methods, business conduct, and work assessment.
• In the event of a privilege violation, the parliament may suspend or expel members.
• If a member or outsider violates a privilege, the parliament may punish them.
• The court cannot examine the activities of the houses and committees of the parliament.

Significance of the Parliamentary Privileges

• It assists in ensuring the efficacy of the activities done by legislators and their independence, shielding them from unwarranted criticism.
• Internal independence should exist without interference from any outside party or person for both houses of parliament and their members to function effectively and the statutory authorities need not intervene in how the houses resolve their problems.
• Giving the privilege has no intention of elevating parliamentarians above the law instead, it is intended to give them a great opportunity to carry out their responsibilities successfully and independently, to grant them some rights to exclude outsiders, to sanction both insiders and outsiders who violate the privileges, etc.
• It aids in upholding the members of parliament’s dignity, and authority. It also honors and protects them from any interference with their ability to carry out their duties in the house.

Existing Challenges

• Legislators can become the sole arbiters of their privileges, what constitutes a breach, and the appropriate sanctions in the event of a breach due to the breach of privilege clause. As a result of doing the judiciary’s task, the legislature opposes the idea of the separation of powers.
• The legislators’ role as judges in their case in this instance raises questions about potential conflicts of interest and transgresses the fundamental right to a fair trial.
• Given the ambiguous language of the Constitution’s provisions, the precise number of privileges is unknown and, in the opinion of some jurists, even unbounded. As a result, politicians frequently abuse these privileges to stifle criticism, infringing upon the right to freedom of expression.

Supreme Court stance on parliamentary privileges

The SC ruled that some fundamental rights are subsidiary to legislative privilege while others take precedence over it. Consequently, SC has not been very explicit on this matter.

2024: A seven-judge constitution bench, led by Chief Justice DY Chandrachud, unanimously declared that parliamentary privileges do not shield individuals from the legal consequences of bribery.

• The bench disagreed with the judgment in the 1998 PV Narasimha Rao case. The judgment in that case which granted immunity to legislators for taking bribes to cast votes has wide ramifications.
• Bribery is not rendered immune under Article 105 or 194 because a legislator indulging in bribery commits a criminal act that is not essential for the function of casting a vote or giving a speech.

Speaker’s role in parliamentary privileges

The Speaker/Rajya Sabha chairperson initially examines a privilege motion.

• The privilege motion may be decided on by the Speaker/Chair or referred to the Parliamentary Privileges Committee.
• The member in question can make a brief statement if the Speaker/Chair grants permission under applicable rules.
• There are allegations against the Speaker of being biased towards the ruling party while deciding on a breach of Parliamentary Privileges.
• It hurts the Principle of Popular sovereignty as the Constitution is supreme in India, not Parliament. Hence, absolute power in the form of Parliamentary privileges makes Parliament supreme instead of the people

Codification of Parliamentary Privileges

Legislators believe that codifying privileges will undermine Parliament’s ability to exercise its authority. Our legislators oppose codification because it would subject the privileges to court review.

Should not be codified

• It would put the Indian Parliament’s sovereignty in jeopardy and subject privileges to judicial review, especially when they contradict fundamental rights. It can cause delays.
• The members should be free to carry out their duties, including having the ability to speak and vote in Parliament, without having to fear or favor anyone.

Should be codified

• A statute to codify privileges was tacitly allowed by the Constitution. If defined, it would specify what constitutes and amounts to a violation of privileges, eliminating any ambiguity. Codification would establish the precise threshold beyond which no penalty may be meted out for privilege violations.
• Codification will permit clear interpretation in a vigorous democracy like India, where the constitution, not the Parliament, is sovereign. Australia, for instance, has established legislative privileges.
• It is necessary to codify privileges and give the right of a citizen to free expression precedence above legislative privileges. Legislators should also behave within the bounds of the public trust placed in them to carry out their duties.
• The Indian Parliament was compared to the British House of Commons by the Constitution’s authors. India does not fall under the purview that the British Parliament is supreme, according to which “Parliament can do everything, it can make a man a woman and a woman a man.” In India, as opposed to England, the Constitution supersedes Parliament.
• The members are granted parliamentary privileges to ensure that the parliament runs smoothly. The parliament must respect all constitutionally given rights. The members should proceed cautiously when using their privileges and refrain from exploiting them.

In the news

2022: The chairman of the parliamentary committee on information technology, Shashi Tharoor, informed Lok Sabha Speaker Om Birla in a letter that during a CBI raid, Karti Chidambaram’s “extremely confidential” documents regarding the panel were “seized.” He claimed that this was a “breach” of the committee’s privilege as well as the privilege of the member. In a letter to Birla, Tharoor brought up a “severe breach of privilege” that committee member Karti Chidambaram had experienced. Tharoor was writing in his capacity as chairman of the Parliamentary Standing Committee on Information and Communications Technology.

2024: A seven-judge Constitution Bench of the Supreme Court, headed by Chief Justice of India DY Chandrachud, ruled that lawmakers facing bribery charges in connection with their speech and votes in the House cannot be immune from criminal prosecution. In doing so, the Court held that claims to parliamentary privilege by lawmakers can be subject to judicial review, and only Parliament cannot have the last word on the issue.

Article written by Chetna Yadav.