Legislative Privileges

What are Legislative Privileges

They are special rights, immunities, and exceptions enjoyed by the members of the legislature, in India, the two Houses of Parliament, State Legislative Assemblies and their committees. Members of the legislature enjoy legal immunity from civil and criminal liabilities for actions done or statements made in the course of their legislative duties.

Erskine May defines parliamentary privileges as the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

Official definition of 'Legislative Privilege'

Legislative Privileges are defined under Article 105 and Article 194 of the Indian Constitution. Article 105(3) and Article 194(3) lays down that the power, immunities, and privileges of each House shall be as such as may be defined by parliament by law.

Legal provision relating to Legislative Privilege

Constitution of India

Article 105 of the Constitution of India. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.

Article 105 of the Indian Constitution defines the powers, privileges, and immunities of Parliament. According to Article 105, members of parliament have the right to free speech and are not subject to legal action based on statements made or votes cast there. Members of parliament are immune from legal action in any court regarding publishing any reports, papers, votes, or actions by or at the direction of the two houses of Parliament. The third clause of Article 105 grants additional privileges.

Article 194 of the Constitution of India. Powers, privileges, etc., of the House of Legislatures and the members and committees thereof

Art. 194, states that members of state legislatures have the right to free speech in the legislatures and their committees. Members of state legislatures cannot be held liable in any proceeding of any court in respect of anything said or any vote given by them in the legislature or any committee thereof. There are also privileges of the Legislature and its members; these powers are given to members and can include the right to punish for contempt, etc. Lastly, it provides immunity for any person from civil or criminal liability arising from official publications such as papers, reports, votes, or proceedings.

Article 361A of the Constitution of India- states that no person will be liable in any proceedings, whether civil or criminal, in any court, concerning the publication in a newspaper of a substantially true report of any proceedings in either House of Parliament or the Legislative Assembly of a state, unless the publication is proved to have been made with malice.

The Parliamentary Proceedings (Protection of Publication) Act, 1977 - This is an Act that protects the publication of reports of the proceedings of the Parliament. There are three main sections in this Act. Section 2 defines what a newspaper is in this Act. Section 3 is the Publication of reports of Parliamentary proceedings privileged, and Section 4 is the Act also applies to Parliamentary proceedings broadcast by wireless telegraphy.

Committee of Privilege

Each House of Parliament and its Committees collectively and members of each House individually enjoy certain rights, privileges, and immunities without which they cannot perform their functions efficiently and effectively. The main aim of parliamentary privilege is to safeguard the freedom, the authority, and the dignity of Parliament. The Committee consists of 15 members who are nominated by the Speaker. Their function is to examine every question that involves the breach of privilege. Rule 227 of the Rules of Procedure and Conduct of Business in Lok Sabha talks about the Reference of questions of privilege to the Committee by the Speaker, which means that the Speaker may refer any question of privilege to the Committee of Privileges for examination, investigation, or report. The Speaker may refer to the Committee any petition regarding the disqualification of a member on the ground of defection for making a preliminary inquiry and submitting a report to him.

Parliamentary Rules of Procedure

• Chapter XVI of Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) deals with the rules relating to the committee of Privileges, which are mentioned in the Handbook for Members of Rajya Sabha (2024). It talks about the Committee of Privileges (Rules 187 - 203 of the Rules of Procedure). Members raising questions on the breach of privilege are required to give notice under Rule 188 (Notice). The Committee of Privileges is constituted under Rule 192 (Constitution of Committee of Privileges) of the Rules of Procedure and Conduct of Business in the Rajya Sabha. The quorum for a meeting of the Committee is five, as it is mentioned in (Rule 194).
• Rule 193 (Chairman of Committee) talks about who will be the Chairman of the Committee.
• Chapter XX of the Rules of Procedure and Conduct of Business in Lok Sabha discusses Privileges, and certain rules help us understand that. For example, Rule 222 discusses the speaker's consent.
• Rule 223 talks about the Notice of Question of Privilege. It means that if a member wishes to raise a question, they have to raise a question of privilege and give a notice in writing to the Secretary General.
• Rule 224 talks about the Admissibility of questions of privilege, which means that the right to raise a question comes with certain conditions.

As defined in case laws:

This term was used in detail in the case of P.V. Narsimha Rao v. State, the main issue of which was whether Art.105 of the Constitution confers ty on a Member of the Parliament from being prosecuted in a criminal court for an offence involving the offering or acceptance of bribery.

Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) talks about the jurisdiction and powers of the Parliament concerning the expulsion of its members and also discusses parliamentary privileges and judicial review.

Pandit M.S.M Sharma v. Dr. Shree Krishna Sinha & Ors., the question in this case was to what extent parliamentary privileges can override parliamentary privileges. The majority judgment of this Court was delivered by S. R. Das, C. J. This Court held in effect that under Art. 194(3) of the Constitution, a House of the Legislature of a State has the same powers, privileges, and immunities as the House of Commons of the Parliament of the United Kingdom had at the commencement of the Constitution. The 'powers or privileges' of a House of State Legislature are the same as the House of Commons. The minority judgment delivered by Subba. Rao, J., on the other hand, expressed, its view that at the relevant date the House of Commons, even as the Legislatures in this country, had no privilege to prevent the publication of a correct and faithful report of the proceedings of those Legislatures, except those of secret sessions, and had only a limited privilege to prevent mala fide publication of garbled, unfaithful or expunged reports of the proceedings. He also held that the petitioner had the fundamental right to publish the report of the proceedings of the Legislature.

Types of Legislative Privilege

Individual Parliamentary Privileges—These are the legal privileges that each Member of Parliament enjoys. Members can express their opinions in the House and are not permitted to be held liable for civil cases 40 days before or after the commencement of the current session of Parliament. Members may not be detained when in session.

Collective Parliamentary Privileges - It is the ability to publish talks, reports, and proceedings while also preventing others from doing the same.

There are also other privileges, as mentioned in the Constitution, like the Freedom of Speech. It means that Art. 105 (1) expressly safeguards freedom of speech in parliament. It says: there shall be freedom of speech in parliament. Clause (2) says that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof. So, freedom of speech in the Parliament becomes subject to the provisions of the Constitution relating to the procedures of the Parliament.

Another privilege is the Right to Publication of Proceedings, Clause (2) of Article. 105 expressly declares that no person shall be liable in respect of the publication of the order under the authority of a house of Parliament, of any report, paper, votes or proceedings. The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no person shall be liable to any proceedings, civil or criminal, in a court in respect of the publication of a substantially true report of the proceedings in either House of the Parliament, unless it is proved that the publication is made with malice.

International Experience

United Kingdom - The earliest institution which may be recognized as a forebearer of what we know today as the Parliament of the United Kingdom of Great Britain and Northern Ireland is the central assembly of highest-ranking feudal lords, or tenants-in-chief, and leading clergymen under the Norman Kings, as existed following the Norman conquest of 1066. This assembly is generally called the Curia Regis or King’s Council. The privileges enjoyed by the Commons can be assumed to accrue a fortiori to the Lords. The individual privileges cannot always be seen as completely independent from each other and could more accurately be termed components of the overall privilege of Parliament. The system of parliamentary privilege in the United Kingdom is a natural starting point for a comprehensive study of immunity systems. Not only is the Parliament of Westminster considered ‘the mother of all parliaments’,14 but its system of privileges dates back almost to the institutional origin of the English legislature in the Middle Ages.

South Africa - To understand how South Africa has defined parliamentary privilege, we have to look into the official document, which is the Government Gazette, Republic of South Africa. Chapter 3 talks about Privileges, Immunities, Independence, and Protection of Members and Parliament. Section 6 is Freedom of Speech in Joint sittings; it means that the President and the members have privileges and immunities in a joint sitting of the National Council Assembly. Sections 6 to 11 talk about the privileges and immunities in more detail.

France - Article 26 of the French Constitution, which reads as follows: "No member of parliament may be prosecuted, investigated, arrested, detained, or tried based on opinions expressed or votes cast by him in the exercise of his functions." "No member of parliament may be arrested or subjected to any other measure of a criminal or correctional nature, depriving him of or restricting his liberty without the authorization of the bureau of the Chamber to which he belongs. Such authorization is not required in case of a crime or misdemeanour in flagrante delicto or case of a final conviction." The basis of parliamentary privileges comes from the French Revolution.

Research on Legislative Privileges

When we talk about Parliamentary privilege, it means the specified rights that members of the Parliament have. For a better understanding, there is a research paper that goes in depth to make people understand the topic. The term 'Privilege', in the context of Constitutional law, can be defined by many eminent scholars of Constitutional law, like Erskine May. There is a reason for its evolution because, particularly, the House of Commons was a weaker body and had a prolonged struggle for the assertion of its privileges against the crown, the courts, and the lords.

Privileges in the Indian Context: In India, the Constitution of India provides privileges of parliament and the state legislature in Articles 105 and 194. Art. 105(3) and 194(3) lays down that the powers, privileges, and immunities of each House shall be in such a way as defined by the Parliament by law. The formation of legislative privileges both for the parliament and state legislatures, and not the perpetuation of the colonial legacy, is the clear message of Art. 105(3) and Art. 194(3).

There has also been a controversy regarding this, in that the fundamental rights that the Constitution of India has guaranteed have, on several occasions, clashed with parliamentary privileges. N.S. Nigam and M.G. Vineeta had explained in the case of M.S. Sharma v. Srikrishna Sinha that the issue was whether publication of expunged portions of Parliamentary proceedings amounted to contempt. It was held that if a law prescribing the powers, privileges, and immunities is enacted, either by Parliament or the State legislature, that law would be subject to Art. 13 of the Constitution and would be void to the extent it contravened the fundamental rights contained in Part III of the constitution of India.

Challenges

The exercise of parliamentary privileges has occasionally given rise to controversies. Instances of misuse, like making defamatory statements under the guise of immunity, undermine public trust in democratic institutions. Similarly, the excessive use of penal powers, such as expulsion or imprisonment, may be considered authoritarian. The lack of codification of privileges in India adds to the problems. Even though the Constitution provides a broad framework, the absence of detailed legislation leads to ambiguities and disputes.

If parliamentary privileges are not codified, then there are different challenges, like a lack of clarity and ambiguity. It means that there is an ambiguity surrounding the privileges enjoyed by the members of the Parliament, which might lead to inconsistencies in their interpretation and application. Without a clear and well-defined codification of privileges, there is a risk of varying interpretations by different courts, which can result in confusion and legal uncertainties. It becomes challenging for both parliamentarians and other stakeholders to understand the extent and limitations of parliamentary privilege. For example, the lack of a codified definition of what constitutes "freedom of speech and debate" under Article 19(2) can lead to differing interpretations by courts, potentially impacting the exercise of this privilege. Without specific guidelines for exercising these parliamentary privileges can be ambiguous, and we cannot determine when they can be invoked.

Also, there is a problem of limited accountability and transparency. If there is no comprehensive code that provides clear guidelines and mechanisms for enforcing and adjudicating privilege claims, it becomes difficult to hold members of parliament accountable for their actions or statements when they use parliamentary privilege as absolute privilege. In case of the absence of codification, the limits of privileges become subjective and vary from case to case.

Related Terms

Parliamentary privileges are also known as the rights and immunities granted to members of Parliament. A synonym for parliamentary privilege is 'legislative privilege'.