,INTRODUCTION
Democracy stands on four pillars – the legislature, the executive, the judiciary and media. Efficiency of each one of these is important for the health of democracy, which is the most acceptable form of government today. Efficacy depends to a great extent on the freedom permitted in the way the organ functions and carries on its mandate. It is desirable that every institution is independent from any other control than the legitimate ones indicated by the Constitution in particular and democracy in general.
The Constitution of India provides for privileges of the Parliament and the State Legislatures. We shall now make an attempt to understand how these privileges found a place in the supreme law of the land, the need for such special rights, and the relevant cases in which this matter has been deliberated upon by the Courts.
LEGISLATIVE PRIVILEGES: MEANING
A privilege can be defined as a right or immunity granted as a peculiar benefit, in derogation of a common right.[i] As observed by the Supreme Court, “Privilege is a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a certain act.”[ii] Legislative privileges are the rights which a sovereign legislature must possess for the due execution of its powers.[iii] Some of them are enjoyed by the individual members of the House. They have been granted with the intention that the legislature discharges its functions independently.
HISTORICAL EVOLUTION
The origin of parliamentary privileges in India can be traced as far back as 1833, when a fourth member was added to the Council of the Governor-General in accordance with the Charter Act of 1833, and a new type of legislative machinery came into existence.[iv] The position of this fourth member was different because, the other three were members of the Executive, and the fourth could only be present in the meetings of the Council which were convened for the purpose of making laws and regulations. Hence, parliamentary privileges indicated privileges of the legislative member of the Council. He enjoyed but a chequered privilege which depended to a great extent upon the attitude of his colleagues and particularly of the Governor-General.[v] When the Charter Act of 1833 was renewed in 1853 by virtue of the Charter Act, 1853, all the legislators were simultaneously members of the government. The privileges of the legislators expanded and grew gradually.
The Government of India Act, 1919 laid the foundation of privileges of legislature in our country. It provided for freedom of speech in the House and immunity to prosecution on account of the publication of any matter in the official proceedings.[vi] The Act read thus:
“Subject to the rules and standing orders affecting the Council, there shall be freedom of speech in the Governor’s Legislative Council. No person shall be liable to any proceeding in any court by reason of his speech or vote in any such Council, or by reason of anything contained in any official report of the proceedings of any such Council.”[vii]
These limited privileges were expanded in the Government of India Act, 1935, which provided for the protection of members against action in courts of law. Besides, the validity of the proceedings in the central legislature could not be called in question on the ground of an alleged irregularity of procedure[viii], and no officer or member of the legislature in whom powers were vested for conducting the business of the House, or for maintaining order in the legislature was subjected to the jurisdiction of any court in respect of the powers exercised by him[ix]. It also empowered the legislature to make laws defining the other privileges of the members, with the qualification that by the provision the status of a court could not be conferred upon the legislature, any of its committees or its members[x]. Though various State legislatures enacted provisions expanding the privileges of the members, full legislative privileges could be granted to the Indian legislatures only after India became free.
THE CONSTITUTIONAL PROVISIONS
Article 105 of the Constitution provides for the privileges of the Houses of the Parliament, of the members and Committees thereof.
Article 194 underlines those of the Houses of the State Legislatures, and of the members and Committees thereof. The privileges are the same and are discussed hereunder:
- Freedom of Speech: Subject to the Articles 118 and 120 (in case of Parliament), and 208 and 211 (in case of State Legislatures), which state that the conduct of judges cannot be questioned, there shall be freedom of speech in the legislature.
- Right of publication of proceedings: The Constitution provides that no person shall be liable in respect of the publication, by order under the authority of a House of Parliament or State Legislature, of any report, paper, votes or proceedings.
- Other privileges: Clause 3 of Articles 105 and 194 provides that the privileges of each House, its members and Committees shall be such as determined by the respective legislature from time to time and until it does so, which it has not done, shall be such as on 20th June, 1979. The privileges which were existing then include the freedom from arrest[xi], right to exclude strangers (which can be regarded as a corollary of the freedom of speech), right to prohibit the publication of debates, right of the House to regulate its own constitution and internal proceedings, to punish members and outsiders and members for contempt, and the right to expel members.
Each House of the legislature has its Committee of Privileges, which considers the matters of the breach of privilege or contempt.
RELEVANT CASES
- M.S.M.Sharma v. Shri Krishna Sinha[xii]
- Powers, Privileges and Immunities of State Legislature, Re.[xiii]
- Tej Kiran Jain & Ors. v. N. Sanjiva Reddy & Ors.[xiv]
- P.V.Narasimha Rao v. State[xv] (The JMM Bribery Case)
[i] Y.V.CHANDRACHUD, P.RAMANATHA AIYAR CONCISE LAW DICTIONARY 915, Nagpur: Wadhwa & Co. (Rep. 2008)
[ii] Isha Valimohamed v. Haji Gulam Mohamad & Haji Data Trust, AIR 1974 SC 2061 at 2065
[iii] Raj Narain Singh v. Atma Ram Govind, AIR 1954 All 319 at 325
[iv] VERINDER GROVER, RANJANA ARORA, CONSTITUTIONAL SCHEMES AND POLITICAL DEVELOPMENT IN INDIA 572, New Delhi: Deep and Deep Publications (1994)
[v] “Lord Ellenborough’s attitude to his law member, who was once even asked to leave the room in the midst of a meeting of the Council being held for non-legislative purposes, was different from the attitude of Bentick or Auckland or Dalhousie.” Ibid.
[vi] Section 72-D (7) of the Government of India Act, 1919
[vii] Ibid.
[viii] Section 41 of the Government of India Act, 1935
[ix] Ibid.
[x] Section 28 (2) of the Government of India Act, 1935
[xi] This has been limited to civil matters only. It does not apply to imprisonment on a criminal charge or for contempt. Ansumali Majundar v. State of West Bengal, AIR 1952 Cal 632.
[xii] [1959] Supp. (1) SCR 806
[xiii] AIR 1965 SC 745
[xiv] (1970) 2 SCC 270
[xv] (1998) 4 SCC 626