Tag: #ParliamentofIndia

{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

Case Number

Transfer Case (civil) 92-95 of 2002

Equivalent Citation

2004 (2) Mh.L.J. 1090

Bench

• Chief Justice Vishweshwar Nath Khare
• Justice Brijesh Kumar
• Justice Arun Kumar

Decided On

April 8, 2004

Relevant Act/Section

• Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002
• Essential Services (Maintenance) Ordinance Repeal Act, 2001
• Transfer of Property Act, 1882

Brief Facts & Procedural History

Here, the constitutionality of SARFAESI was challenged, particularly Sections 13, 15, 17, and 34, on the grounds that they are arbitrary and unjustified.

The Industrial Development Bank of India (for short, ‘the IDBI’) issued a notice to Mardia Chemicals Ltd. on July 24, 2002, under Section 13 of the then-current Ordinance, requiring it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI, as a secured creditor, would be entitled to enforce the security interest without the intervention of a court or Tribunal, using all or any of the measures contained in sub-section (4) of S The petitioner was also prohibited from selling, leasing, or otherwise transferring any of the secured assets.

Other financial institutions and banks issued similar notices to other parties who filed petitions in various High Courts under the terms of Section 13 of the Ordinance/Act. This was united with a number of other writ petitions filed in several High Courts contesting the constitutionality of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002.

The petitioners argued that the Recovery of Debts Due to Banks and Financial Institutions Act 1993 was sufficient to address the difficulty created by NPAs and that the current statute was unnecessary. It is debatable whether the Court should delve into the necessity of a statute while considering its constitutional legitimacy. “The Parliament and Legislatures composed as they are of the Representatives of the people are supposed to be cognizant of the requirements of the people and what is good or harmful for them,” the Supreme Court has previously decided.
The Court is unable to sit in judgment of their wisdom… A law passed by Parliament or a state legislature can be overturned for two reasons:

1. inadequacy of legislative authority
2. infringement of any constitutional rights¹

In BALCO Employees Union v Union of India², the Supreme Court has ruled that the right place for discussing policy issues is the legislature, not the courts.

In light of the Court’s previous pronouncements, it is evident that the question to be answered is whether the legislation is constitutional. Any discussion of whether a statute is required, particularly in light of another Act whose scope is not in question in this case, was superfluous. As a result, the Court declined to hear the case.

Many petitioners argued that the existing rights of private parties under a contract cannot be interfered with, particularly by putting one party in a more advantageous position than the other. In the present case, for example, in a matter of private contract between the borrower and the financing bank or institution, the borrowers’ rights have been curtailed and enforcement of secured assets has been provided without the intervention of the court, denying them the remedy available under the law by approaching the civil court.

The Appellants are vague on where they find the legal validity of their claim. The Honourable Supreme Court has pointed out that, unlike the US Constitution, there is no bar to prospective contract invalidation in India, and hence such a statute is completely constitutional.³

Indeed, the 44th amendment removed the right to property as a basic right from the Constitution, leaving it only as a constitutional right. Indeed, even while the right existed in part III, the courts ruled that absolute contract freedom, as defined by the idea of leissez faire, was no longer valid.⁴

The Appellants have also been unable to locate the rights under Art 19(1)(g) and Art 298. The Supreme Court has ruled that these articles are subject to reasonable constraints and that what is acceptable is to be interpreted in the public interest, regardless of how onerous the restrictions are on the individual’s interests.⁵

In light of these precedents, it’s difficult to identify where the appellants’ reasoning originates. The respondents’ counsels, on the other hand, have not taken a position on the Constitution’s freedom of contract or right to trade, but have pointed out that a similar argument has been raised in a different context, namely statutes providing relief to agricultural borrowers, and has been repeatedly rejected.

It has been contended that certain facts must be determined before the power u/s.13 can be used, such as whether the person to whom notice is given is liable to pay, the magnitude of the liability, and so on. Furthermore, issues such as the law of limitation and bar under consortium agreements, set-off/counterclaim claims, creditors defaults as bailees or failure to disburse credit on time, the changeability of penal interest or compound interest, non-appropriation of funds already paid, and so on and so forth must be resolved.

So, using case law that will be covered in the main project, it was claimed that a lis exists in such a case and that the ability to resolve a lis is a judicial or quasi-judicial power, not solely an administrative function. As a result, a suitable forum must be established to resolve all such disagreements at an early stage.⁶

The statutory provision becomes arbitrary, procedurally, and substantively unfair if such a forum is not established. This is a false argument based on facts. S.13 does not preclude the use of any judicial venue; it just states that a judicial remedy can be sought only after the secured creditor has used his powers under s.13 (4). This is entirely correct. Many legislations provide for the use of a forum after the aggrieved party has exhausted self-help options.

It was also pointed out that the provisions of s.13 generate some practical challenges that could lead to serious legal errors. Section 2(f) of the Act, for example, specifies that the meaning of the term “borrower” includes the guarantor. A guarantor is relieved of his commitment under Section 135 of the Contract Act in certain circumstances. Now, if a discharged guarantee receives a notification under Section 13(2) of the Act, he cannot approach the Court to show and establish that he is a discharged guarantor because Section 34 prohibits him from filing an action in the Civil Court. As a result, notice under Section 13(2) is unfavourable.⁷

These concerns have been addressed by Section 35 of the Securitization Act, which states that the Act’s provisions have precedence over all other laws. Finally, it was pointed out that under s.13 read with s.34, the borrower has no right to go to court before the lender employs the rights granted under s.13 (4), exposing him to arbitrary and potentially fraudulent lending practises. It was argued in defence of this section that because the asset cannot be sold for 60 days under Section 9 of the Rules, the borrower has the option of approaching the Tribunal within that time frame. The Court accepted the plaintiffs’ argument in part and added two riders to s.13. To begin with, it was held that the lender had an obligation to reveal the reasons for not accepting the objections or points expressed in response to the notice issued to them before taking action under Section 13 (4). Second, the Court made a comparison to an English mortgage, pointing out that enforcement proceedings under an English mortgage can be contested on the basis of fraud. This section is also subject to such provisions.⁸

Another point that the Court has overlooked is that a statute must be read in context and in pari materia as a standard rule of legislative construction. The present Act’s s.13 is pari materia with the State Financial Corporation Act of 1951’s s.29. Art 300A, 21, and 14 have all been challenged on the basis of this section’s constitutional vires, specifically that it provides no right of appeal. Though the matter was never heard by the Supreme Court, it was considered by a number of High Courts. The courts have consistently ruled that the Act itself reveals a clear aim and objective and that the power granted under s.29 is intended to carry out that policy, namely, the prompt collection of dues.⁹

Issues before the Court

• Is it possible to challenge the statute on the grounds that it was unnecessary to create it given the circumstances, especially when another statute was already in effect?
• Whether the terms or existing rights under a contract entered into by two private persons could be altered by provisions of law conferring one-sided powers in favour of one of the contracting parties?
• Whether or not Section 13 of the Act is unconstitutional?
• Whether the requirement that 75% of the amount owing to be paid before filing an appeal with the DRT is onerous and thus Section 17 of the Act unconstitutional?

Decision of the Court

In this case, the Supreme Court held that:

a) The Parliament’s superiority in deciding the need for legislation was emphasised.
b) The connection between the RDB Act and SARFAESI was rejected since the latter deals with the highly particular issue of nonperforming assets (NPAs) (among other differences such as the latter dealing only with secured creditors).
c) As a result, it is up to Parliament to decide whether or not legislation is required.
d) Section 13 was found to be constitutionally legitimate by the Court.
e) The secured creditor is only exercising his entitlement because the default that led to the sec 13 measure might be considered a “second default”—NPA + 60 days extra time to repay following notice.
f) Prior to the 2016 Amendment, Section 13 acknowledged the Right of Redemption in a sense. Rule 8 and 9 of the SI Rules stated that the bank must serve a notice confirming the sale of secured property and that the borrower may pay off the obligation and reclaim possession at any point prior to the actual sale
g) While the Supreme Court confirmed the constitutionality of the section, it pushed hard for borrowers to have the right to representation.
h) The Supreme Court determined Section 17(2) to be arbitrary, and ordered that the heading be altered from “appeal” to “application.”

Impact of the Judgement

1. Section 13 now states that the bank must evaluate all of a borrower’s representations and respond within seven days (which was later changed to 15 days).
2. Within section 17, the word “appeal” was replaced by “application,” despite the fact that the marginal header remained the same (wow). In 2016, the appeal was superseded by an application in the marginal heading.
3. DRTs now have jurisdiction over the rights of tenants in a security property. In such instances, the property is given to the person who files the application (if he meets the requirements).
4. Section 18 was also considerably amended. When filing an appeal with the DRAT, you must deposit 50% of the total cost, which can be lowered to 25%. DRT was likewise granted a similar waiver right under Section 17.

Citations:

1. State of Andhra Pradesh v McDowell, AIR 1996 SC 1627
2. AIR 2002 SC 350
3. Raghubir Dayal v Union of India, AIR 1962 SC 263
4. YA Marmade v Authority under Minimum Wages Act, (1972) 2 SCC 108
5. Krishan Kakkanth v Government of Kerala, (1997) 9 SCC 495
6. Kihoto Hollohan v. Zachillhu & Ors1992 Suppl. (2) SCC p. 651 and Associated Cement Companies Ltd v. P.N. Sharma (1965(2) SCR p. 366 at pages 386-87).
7. Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., 1997(5) SCC
8. Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49)
9. K Surendranathan v Kerala Financial Corporation AIR 1988 Ker 330

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.