Parliamentary Privileges

Breach of Parliamentary Privileges and Need of Codification

Context:

Recently, Maharashtra Legislative Council unanimously passed a proposal to not take cognisance of any notice or summons issued by the high court or Supreme Court if a person challenges the breach of privilege proceedings initiated against him by the Upper House of the state Legislature.

Probable Question

1. The absence of legal codification of the      ‘parliamentary privileges’ has implications on citizen’s right to free      speech. Critically comment.

About Parliamentary privileges:

● They are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members. They are necessary to secure the independence and effectiveness of their actions.

● Article 105 pertains to the powers, privileges, etc, of Parliament, its members and committees while Article 194, which is identical to 105, protects the privileges and powers of the houses of the legislature, their members and committees in the states.

● The Constitution has also extended the parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliamentor any of its committees. These include the attorney general of India and Union ministers.

● According to the Constitution, the powers, privileges and immunities of Parliament and MP's are to be defined by Parliament. No law has so far been enacted in this respect.

● There are no clearly laid out rules on what constitutes a breach of privilege and what punishment it entails. In the absence of any such law, it continues to be governed by British Parliamentary conventions.

Privileges of Parliamentarians:

● Freedom of Speech: According to the Indian Constitution, the members of Parliament enjoy the freedom of speech and expression. No member can be taken to task anywhere outside the four walls of the House (e.g. court of law) or cannot be discriminated against for expressing his/her views in the House and its Committees.

● Freedom from Arrest: It is understood that no member shall be arrested in a civil case 40 days before and after the adjournment of the House (Lok Sabha or Rajya Sabha) and also when the House is in session. It also means that no member can be arrested within the precincts of the Parliament without the permission of the House to which he/she belongs.

● Exemption from attendance as witnesses: The members of Parliament also enjoy freedom from attendance as witnesses.

Privileges of Parliament:

● Right to publish debates and proceedings: Though by convention, the Parliament does not prohibit the press to publish its proceedings, yet technically the House has every such right to forbid such publication. Again, while a member has the privilege of freedom of speech in Parliament, he has no right to publish it outside Parliament.

● Right to exclude strangers: Each house of Parliament enjoys the right to exclude strangers (no-members or visitors) from the galleries at any time and to resolve to debate with closed doors.

● Right to punish members and outsiders for breach of its privileges: In India, the Parliament has been given punitive powers to punish those who are adjudged guilty of contempt of the House. Such contempt can be committed by the members of any House or any outsider. When a member of the House is involved in parliamentary misbehaviour or commits contempt he can be expelled from the House.

● Right to regulate the internal affairs of the House: The House has the right to regulate its internal affairs. A member of the House is free to say whatever he likes subject only to the internal discipline of the House or the Committee concerned.

Breach of privilege:

● A breach of privilege is a violation of any of the privileges of MPs/Parliament. Among other things, any action 'casting reflections' on MPs, parliament or its committees; could be considered a breach of privilege. This may include publishing of news items, editorials or statements made in newspaper/magazine/TV interviews or in public speeches.

Prevailing Issues:

● The codification of privileges is resisted because it would make the privileges subject to fundamental rights and hence judicial scrutiny and evolution of new privileges would not be possible.

● That it is sometimes used to counter media criticism of legislators and as a substitute for legal proceedings.

● All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allows politicians to become judges in their cause, raising concerns of conflict of interest and violating basic fair trial guarantees.

● The Constitution’s provisions on privileges and powers of the legislature are not defined. what should be the privileges that protect the members of legislatures and the House?

● In the absence of a code, how does one know whether an action is a breach of privilege or not?

Way Forward:

● The Constitution Review Commission headed by Justice M.N. Venkatachaliah had recommended that privileges should be defined and delimited for the free and independent functioning of the legislatures.

● There is a need for the courts to revisit the earlier judgments and find the right balance between the fundamental rights of citizens and the privilege of the legislature.