Erskine May has defined parliamentary privileges in his book, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, as;
“Parliamentary privilege is the sum of the peculiar rights enjoyed by the House collectively.. 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. Thus privilege, though part of the law of land, is to a certain extent an exemption from general law.”
In the Indian Constitution, these are defined in the Article 105These rights can be divided into two categories; those which are extended to the House collectively and those which are given to the members individually.
The individual privileges of Members of the House are:
- Freedom of Speech: As the essence of democracy is providing free and fearless discussion, where anybody and everybody can come forward and speak their mind, hence anything said by the Members of the Parliament are exempted from liability and thus cannot be tried in the court of law. However, this freedom of speech is different than the one provided under Article 19 (2). The freedom provided in Article 105 (1) is subject to rules and orders which regulate the proceedings of the Parliament.
- Freedom from Arrest: No Member of Parliament should be arrested 40 days before and after the adjournment of the House and also when the House is in session. However, this immunity is limited to only civil cases and not criminal ones. Any Member can also not be arrested in the precincts of the Parliament without the permission of the House.
- Freedom from appearing as a witness: The members of the Parliament are exempted from attending courts as witness and are given complete liberty to attend the House and perform their duties. This is given in Article 105 (2) according to which 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.
The scope of this immunity was examined by the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy. The Court held:
“This article confers immunity inter alia in respect of ‘anything said … in Parliament’. The word ‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from the words ‘in Parliament’ which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be.”
The collective privileges of Members of Parliament are:
- Right to prohibit the publication of proceedings: Conventionally, Parliament doesn’t prohibit the publication yet it holds the right to do so. The Members may have right to speech, but they can’t publish anything outside the Parliament.
- Right to exclude strangers: Parliament has every right to exclude outsiders and can hold secret meetings behind closed doors.
- Right to punish members and outsiders for breach of its privileges: If a member or outsider commits any kind of Parliamentary misbehaviour then punitive actions can be taken against them.
- Right to regulate internal affairs: According to Article 118, the Houses have been empowered to conduct its regulation for proceedings.
In spite of all these privileges, they do not supersede the Fundamental Rights, contained in Part III of the Indian Constitution. This was illustrated in the case of, Gunupati Keshavaram Reddy v. Nafisul Hasan and the State of U.P. (AIR 1952).
A warrant against the Home Minister was issued by the U.P. Legislative Assembly. He was arrested from his house in Bombay on the ground of contempt of the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention violated his Fundamental Right.
The Supreme Court accepted the arguments and ordered his release under Article 22 (2). He was not presented before the magistrate within 24 hours of his arrest. This meant the violation of his Fundamental Right. In this case it was opined that Article 105 and Article 194 cannot supersede the Fundamental Rights.
In Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths. In Rajya Sabha, the Deputy Chairperson heads the privileges committee, which consists of 10 members.
Contempt of the House or Parliamentary Breach
The contempt of House is not codified, so as to tell us what will be considered in the breach of Parliament. However, there are various acts which are considered as contempt. These actions tend to obstruct the proceedings of the house and hence are taken in contempt.
Some of the actions are mentioned below:
- Giving any misleading statement: Acts which are done solely with the purpose of misleading others is called contempt of House. However, if the person making the statement believes it to be true then there is no breach involved. But it should be proved that the intention was not malicious and there was firm belief in that statement.
- Disturbance by outsiders: If there is any disruption caused due to protesting in the ongoing Parliamentary session then this too will be considered as contempt.
- Assault on members: If someone assaults a Member of House while they are performing their duty then this is also contempt.
- Speeches against character of member: Any libel made against the character of member is regarded as Parliamentary breach.
Any attack on the privileges of Members of the Houses is taken under contempt or Parliamentary breach.
Punishment for contempt
Some prescribed punishments for contempt are:
- Imprisonment: If the breach committed is very grave in nature then only punishment by imprisonment is considered.
- Imposing Fine: If the offence is for pecuniary gain then Parliament can impose fine.
- Prosecuting the offenders: The Parliament is free to prosecute those who have committed the offence of contempt.
- Suspension: If the Parliament deems fit then the accused member can also be suspended.
Suspension can be a standalone punishment or may be along with some fine.