{This article is written by Prashant Prasad, a second-year law student from University Law College. This article intends to describe the role of parliamentary privileges in safeguarding the interest of members of the house.}

Introduction 

The Parliament holds one vital position in a country and is responsible for the legislation of laws. It’s a place where people i.e. members of the house, sit and discuss the problem related to national and international issues. The composition of parliament is as such there is a Rajya Sabha (Upper House), Lok Sabha (Lower House), and President all these 3 entities together are known as a Parliament.

Because Parliament should work without any restraint and fear certain privileges have been provided collectively and individually. These rights and immunities have been provided to the members of parliament so that they can effectively discharge their functions. 

• Collectively – Privileges are being enjoyed by the members of parliament as a whole. 
• Individually – Enjoyed by each present is the house.

The Parliamentary Privileges¹ are not only available to the members of the houses but are available to the ones who are constitutionally entitled to speak and take part in proceedings of each house such as ministers, Attorney Generals, etc.

For the privileges in the state legislature, we do have Article 194 which jots down the power, and privileges of the house of the state legislature. These parliamentary privileges have been provided in the Indian constitution so that the working of the house and proceedings should take place without any kind of fear and restraint which will eventually enhance the process of legislation. This article will explain in detail what the different kinds of parliamentary privileges are and how these privileges safeguard the members of either house.  

To what extent there is Freedom of speech in the Parliament?

For the members of parliament to discuss and participate in the debates during the preceding house freedom of speech has been provided. This immunity allows the members to discuss and present their views effectively without having a fear to get penalized for the words they are saying. This privilege allows the members to present their views in a free, frank, and fearless way. 

In the case of Tej Kiran v. Sanjiva Reddy² there was a world Hindu Religious Conference that was going on in Patna, in that conference Jagadguru Shankaracharya said some statements on untouchability. Subsequently, after a few days, a derogatory statement was spoken against Jagadguru Shankaracharya on his remark on untouchability. One of the disciples of Jagadguru Shankaracharya filed a suit for damages against the six members of the parliament. The High Court rejected the plaint of the plaintiff, plaintiff again appealed to the Supreme Court. The Supreme Court emphasized Article 105(1) and held that whatever is said in parliament i.e. during the sitting of the parliament is immunized and hence members of parliament are not liable.

Limitations Freedom of speech in the Parliament

Article 118 has given that Freedom of Speech should be following the constitutional provisions and rules. Further, under Article 121 the members of parliament are restricted from discussing the conduct of judges of the Supreme Court and High Courts. These are a few limitations regarding Freedom of Speech in the Parliament apart from this the members of parliament during the session of the houses do have full right to exercise Freedom of Speech.

Publication of proceedings under the Parliament Authority

The Parliament Papers Act, 1840³ was passed which provides that publication of any reports, proceeding, papers, etc. of the houses which are to be published under the authority of the Parliament is completely privileged. Article 105(2) provides that no person shall be liable for publishing any reports, discussion, etc. of the house under the authority of members of the house. Therefore we can say that all the people who are connected with the publication of any stuff related to the parliament under the authority of parliament are completely immunized provided that the authority of parliament must be there.

In the case of Dr Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee^4, the member of the state legislature gave notice to the speaker regarding whether he can ask certain questions in the assembly. The speaker disdainfully disallowed the asking of a question. The member published this news in a local journal. In turn a govt. servant filed a suit against that member and also against the editor (under 500 and 501 of IPC⁵) who published that news and it was contended that this news defamed the reputation of the speaker. The matter came before the Supreme Court and it was held by the court that the said publication does not fall under the scope of Article 194(2), as it was not under the authority of the house and hence the Member of Parliament is not privileged in this case. The court however led the question open that whether the disallowed question can be said to form a part of a parliament proceeding or not. 

What is Freedom from arrest if anyone is a Member of Parliament?

The Member of Parliament enjoys Freedom from arrest in any civil case 40 days before and 40 days after the session of the house. The main reason behind the inculcation of this privilege is to make sure the safe arrival of and regular attendance in the Parliament. However, one main point is to be noted that this arrest is only for civil cases and not for criminal cases, contempt of court, or preventive detention. Therefore in July 2021, the Supreme Court rejected the Kerala government’s plea to withdraw the criminal charge from the MLA⁶. If any member is being arrested in the parliament then in that scenario the chairman and speaker must be informed by the concerned authority and also the reason for the arrest.

There are main other privileges enjoyed by being a member of parliament and those privileges are also regarded as Parliamentary Privileges. Such as – Rule making power, Internal Autonomy, the Right to exclude strangers, the Right of the house to regulate its Constitution, etc. 

PV Narsimha Rao v. State⁷ – An analysis of how Parliamentary Privileges safeguard the Members of Parliament 

Facts – The Narasimha Rao government was not enjoying the majority at the centre i.e. in Lok Sabha, therefore the no-confidence motion was moved by the opposite party. To eradicate that defeat based on no-confidence certain members of the ruling party gave a large sum of money to a few members of JMM (Jharkhand Mukti Morcha) to vote against the motion on the floor. However, few members voted against the motion and one became absent on the day of voting. The confidence motion was defeated in the house with ‘251’ for and ‘265’ against. However, the act committed by the ruling party came to the notice, and constantly the case came to the Supreme Court. Many questions were raised in this case and the foremost was whether all these incidents constitute criminal prosecution under a bribery case.

Issues Raised –

1. Can the members by the virtue of Articles 105(1) and 105(2) claim immunity from prosecution on a charge of bribery concerning proceedings in parliament?
2. Can the members of parliament be regarded as public servants under the Prevention of Corruption Act, 1988
3. Is the Prevention of Corruption Act, 1988 applicable in this case?

Judgment –
The Five Judge bench split their verdict in the ratio of 3:2; the court has taken judgment based on articles 105(1) and 105(2) in literal interpretation. The court of law increased the scope of these articles and held that the members are immune from any kind of proceedings against them in respect of any vote in the parliament. In this particular case, members who have given the bribe did not enjoy immunity from prosecution. The court further held that based on the literal interpretation of the Articles under question the JMM members who have taken the bribe and voted against the motion are not guilty of corruption. But one member who has taken the bribe but did not vote was held guilty of prosecution.

Analysis – It is evident from the facts and circumstances of this case that the members of parliament enjoy greater privileges and immunity concerning the parliamentary proceedings. This case showed that any work done by members of parliament during any kind of proceeding or vote in the parliament is immune from the guilt of prosecution. Thus in the nutshell, we can say that members of parliament enjoy greater privileges during the parliament which a normal person is incapable of enjoying. 

The clash between Parliament and Judiciary – Keshava Singh v. Speaker, Legislative Assembly⁸

In this case, Keshav Singh was not a member of the U.P Legislative Assembly printed and published a pamphlet that was criticized by the speaker for contempt of the house and breach of privilege of one of the members of the house. He was sentenced to imprisonment for 7 days. The petitioner however moved to court with the petition of Habeas Corpus alleging that his imprisonment is illegal and malafide as he was not allowed to defend himself.

The Allahabad High Court evaluated the facts of the petition and the petitioner was granted interim bail to the petitioner. This decision given by the Allahabad High Court was unsatisfactory by the Assembly, therefore the assembly passed the resolution that Keshav Singh, the Judges, and the Advocate of Keshav Singh has committed contempt of house, and hence they must be taken into custody.

This case was eventually transferred to the Supreme Court and finally, it was held by the court that the Judges were not guilty of giving bail to Keshav Singh. The Apex Court further stated that the High Court does have a Jurisdiction under article 226 to order a release of a person whose detention was illegal.

Supremacy! Parliamentary Privileges or Fundamental Rights⁹

In many instances there is a conflict between Fundamental Rights and Parliamentary Privileges, the question here comes which one will prevail in case of conflict. The question of conflict arose for the first time in the case of Gunupati Keshavram Reddy v. Nafisul Hasan¹⁰ in this case the U.P. Legislative assembly issued a warrant for the arrest of the Home Minster; subsequently, he was arrested from his home in Bombay on the ground of contempt of the house. He was arrested and brought to Lucknow and lodged in a hotel for a week without anything being done in the matter. Subsequently, a petition of habeas corpus was moved in the Supreme Court on the ground that his Fundamental Right was breached under Article 22(2). Article 22(2) envisaged that the person arrested must be produced before a magistrate within 24 hours which was not done in this case

Not presenting the Minister before the Magistrate within 24 hours, this argument was accepted by the court and hence allowed him a release as it amounts to the violation of article 22(2). Therefore from this case, we can observe that Fundamental Rights cannot be subsided merely based on Parliamentary Privileges. Further, in the case of MSM Sharma v. Sinha¹¹ it was held by the Supreme Court that parliamentary privileges enjoyed under article 105(3) at the centre and Article 194(3) under state legislature, are not subject to Article 19(1) (a) i.e. Fundamental Right of Speech and Expression. Hence, we can conclude the fact that between Fundamental Right and Parliamentary Privileges, Fundamental Right is supreme. 

How Judiciary interprets the Parliamentary Privileges 

The Judiciary from time to time has taken into consideration the cases in which there has been wrong committed by the members of parliament who are taking benefit of the parliamentary privileges. In the case of Keshava Singh v. Speaker, Legislative Assembly¹², the Supreme Court concluded that the privileges given to the members are the basic right and in case of dispute fundamental rights shall prevail. In many instances, it is being argued by the judiciary that in case of contradiction between privileges and basic rights it will be handled with the use of the harmonious methodology. 

The judiciary has stated that they are well aware of the fact that they do not have jurisdiction over the parliamentary matter but the judicial body should have the power to decide for the betterment of society at large or a community. Therefore any matter concerning society and community even though there is the involvement of parliament; the Judiciary shall have the power to take into consideration those matters for the benefit of society.

Conclusion 

From the above discussion, we can conclude the fact that Parliamentary Privileges are provided for the smooth and effective working of the Parliament. The members of Parliament enjoy certain immunities which are enjoyed in the house and certain conditions outside the house as well. In a democratic country like India, these Privileges are very much essential and must be carried throughout so that the parliament should work as an independent body. We have seen that in certain instances there is a conflict between the parliament and the Judiciary at that time the very essence of those privileges is the protection of an individual’s fundamental rights. Therefore in the circumstances when there will be a conflict between the fundamental right and parliamentary privileges then in that condition fundamental rights will prevail over parliamentary privileges. It is the duty of parliament not to violate any right which is being given by the constitution. It should be further noted that members should use their privileges for welfare and must not use their privileges for any misconduct. We have seen in the case of PV Narsimha Rao v. State although the member has taken a bribe for voting there were not held liable because of the parliamentary privileges. There are some loopholes still subsisting in the parliamentary privileges the authority must consider those points and proper amendments are required to be done. Therefore in the nutshell, we can conclude to the fact that parliamentary privileges are being provided for the efficient working of parliament without any fear and they must be used for that purpose only.

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[1] INDIA CONST. art. 105
[2] Tej Kiran v. Sanjiva Reddy, AIR 1970 SC 1573
[3] The Parliament Papers Act, 1840, 3 & 4 Vict c 9
[4] Dr. Jatish Chandra Ghosh vs. Hari Sadhan Mukherjee, AIR 1961 SC 613
[5] Indian Penal Code, 1860, Act no. 45 of 1860
[6] The Privileges of Members of Parliament, Drishi Ias, (Jan 25, 2023) https://www.drishtiias.com/daily-updates/daily-news-analysis/the-privileges-of-members-of-parliament
[7] PV Narsimha Rao v. State, AIR 1998 SC 2120
[8] Keshava Singh v. Speaker, Legislative Assembly, AIR 1965 SC 745
[9] INDIA CONST. art. 12 – 35 
[10] Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1959 SC 636
[11] MSM Sharma v. Sinha, AIR 1959 SC 395 
[12] Supra note xii