Q. 1.What parliamentary privileges are prescribed under the Indian Constitution ? Explain briefly the controversy between parliamentary privileges and law courts.
Ans. Powers, Privileges and Immunities of Parliament and its Members. Privileges are certain rights belonging to each House of Parliament collectively and some others belonging to the members individually, without which it would be impossible for either House to maintain its independence of action or the dignity of its position. Both the House of Parliament as well as of a State Legislature have similar privileges under our Constitution. Clauses (l)-(2), of Arts, 105 and 194 of our Constitution deal only with two matters, viz, freedom of speech and right of publication. As regard privileges relating to other matters, the position, as it stands after the 44th Amendment, 1978, is as follows-The privileges of members of our Parliament were to be the same as those of members of the House of Commons (as they existed at the commencement of the Constitution), until our Parliament itself takes up legislation relating to privileges in whole or in part. In other words, if Parliament enacts any provision relating to any particular privilege at any time, the English precedents will to that extent be superseded in its application to our Parliament. No such legislation having been made by our Parliament, the privileges were the same as in the House of the Commons, subject to such exceptions as necessarily follow from the difference in the constitutional set-up in India. Reference to House ofCommons was omitted in 1978. In an old case, the Supreme Court held that if there was any conflict between the existing privileges of Parliament and the fundamental rights of a citizen,-the former shall prevail, for the provisions in Arts. 105(3) and 194(3) of the Constitution, which confer upon the Houses of our Legislatures the same British privileges as those of the House of Commons, are independent provisions and are not to be construed as subject to Part Ill of the Constitution, guaranteeing the Fundamental Rights. For instance, if the House of a Legislature expunges a portion of its debates from its proceedings, or otherwise prohibits its publication, anybody who publishes such prohibited debate will be guilty of contempt of Parliament and punishable by the House and the Fundamenal Right of freedom of expression Art. 19(1)(a) will be no defence. But in a recent case, the Supreme Court has held that though the existing privileges would not be fettered by Art. 19(I)(a), they must be read subject to Arts 20-22 and 32. The privileges of each House may be divided into two groups
(A) The privileges enjoyed by the members individually are :
(i) Freedom from Arrest : Section 135A of the C.Procedure Code, as amended by Act 104 of 1976, exempts a member from arrest during the continuance of a meeting of the Chamber or Committee thereof of which he is a member or of a joint sitting of the Chambers or Committees, and during a period of 40 days before and after such meeting or sitting. This immunity is, however, confined to arrest in civil cases and does not extend to arrest in criminal case or under the law of Preventive Detention.
(ii) Freedom of Attendance as Witness : According to the English practice, a member cannot be summoned, without the leave of the House, to give evidence as a witness while Parliament is in session.
(iii) Freedom of Speech : As in England, there will be freedom of speech within the walls of each House in the sense of immunity of action for anything said therein. While an ordinary citizen’s right of speech is subject to the restrictions specified in Art. 19(2), such as the law relating to defamation, a Member of Parliament cannot be made liable in any court of law in respect of anything said in Parliament or any Committee thereof. But this does not mean unrestricted licence to speak anything that a member may like, regardless of the dignity of the House. The freedom of speech is therefore ‘subject to the rules’ framed by the House under its powers to regulate its internal procedure. The Constitution itself imposes another limitation upon the freedom of speech in Parliament, namely, that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge.
(B) The privileges of the House collectively are—
(i) The right to publish debates and proceedings and the right to restrain publication by others;
(ii) The right to exclude others;
(iii) The right to regulate the internal affairs of the House, and to decide matters arising within its walls;
(iv) The right to publish Parliamentary misbehaviour;
(v) The right to punish members and outsiders for breach of its privileges. Thus, each House of Parliament shall have the power —
(i) To exclude strangers from the galleries at any time. Under the Rules of Procedure, the Speaker and the Chairman have the right to order the withdrawal of strangers from any part of the House.
(ii) To regulate its internal affairs. Each House of Parliament has the right to control and regulate its proceedings and also to decide any matter arising within its walls, without interference from the Courts. What is said or done within the walls of Parliament cannot be inquired into in a Court of Law.
(iii) To punish members and outsiders for breach of his privileges. Each House can punish for contempt or breach of its privileges, and the punishment may take the form of admonition, reprimand or imprisonment. Thus, in the famous Blitz case, the Editor of the newspaper was called to the Bar of the House of the People and reprimanded for having published an article derogatory to the dignity of a member in bis capacity as member of the House.