India is called the world’s largest democratic country. The power to make law exists with the Indian Parliament. The members of the lower house of Parliament are elected from the direct election while the members of the upper house are elected from the Legislative Assembly of States and Union territories by means of Single transferable vote through Proportional representation.
Parliamentary privileges are special rights, immunities, exceptions enjoyed by the members of the two houses of parliament and their committees. Originally the constitution envisaged two types of privileges under the article 105 of the Indian constitution. One is freedom of speech in Parliament and the right of publication of its proceedings. Article 105 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances. Such privileges are granted as they are needed for democratic functioning and for exercising constitutional functions. These privileges are considered as special provisions and have an overriding effect in conflict. The members of Parliament are exempted from any civil or criminal liability for any statement made or act done in the course of their duties. The privileges are claimed only when the person is a member of the house. As soon as he ends to be a member, the privileges are said to be called off.
There is a very minute line of gap between the powers and privileges, yet it doubtlessly can make an incredible contrast. The word privilege may be defined as a special advantage to a particular group of persons due to the position they hold in the system, whereas power in simple words can be understood as a person’s capacity to control things. Parliamentary privileges are those which are enjoyed by the house as a whole. However, this has to be kept in mind that these privileges are enjoyed by the parliamentarians only when the assembly is in session and not otherwise.
The privileges of the legislature of a state are similar to those of the Union Parliament in as much as the constitutional provisions [Article 194 and Article 105] are identical. Going by the standard form, any person who violates or breaches the Privileges should be punished or held by the Judiciary because of that being its main function, but the parliament does not have recourse to the court for exercising its penal powers and can punish people who breach the privileges given to the parliamentarians on its own, due to the virtue of Article 105(3).
THE PRIVILEGES ENJOYED INDIVIDUALLY BY THE MEMBERS
Freedom of speech in parliament
The members of the parliament have been vested with the freedom of speech and expression. Because the heart of our parliamentary system is open and fearless debate, everything they say expressing their opinions and beliefs is immune from liability and cannot be prosecuted in a court of law.
The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament. It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulates the proceedings of the parliament.
This right is given even to non-members who have a right to speak in the house. Example, attorney general of India. So that, there is fearless participation of the members in the debate and every member can put forward his thought without any fear or favour.
Some limitations are also present which should be followed in order to claim immunity
- Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, stated under Article 118 of the Constitution.
- Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court. But, even if this happens, it is the matter of the parliament and the court cannot interfere.
- No privilege and immunity can be claimed by the member for anything which is said outside the proceedings of the house.
Freedom from arrest
When the house is in session and for 40 days before and after the adjournment, members are not subject to arrest in any civil matter. To ensure that their ability to fulfil their responsibilities is not hindered, no member may be detained outside of the boundaries of the parliament without the consent of the house to which they are assigned.
If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, the reason for the arrest. But, a member can be arrested outside the limits of the house on criminal charges against him under The Preventive Detention act, The Essential Services Maintenance Act (ESMA), The National Security Act (NSA) or any such act.
Power to make rules of procedure
Each House of Parliament has the authority to establish rules that will govern how it does its work, according to Article 118. Both Houses had enacted their rule book which is known as Rules of Procedure and Conduct of business in Lok Sabha and Rules of Procedure and Conduct of Business in the Council of States respectively.
Right to prohibit the publication of its reporters and proceedings
The right has been granted to remove or delete any part of the proceedings took place in the house.
Right to regulate internal proceedings
The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly. But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.
Right to punish members or outsiders for contempt
This right has been given to every house of the Parliament. If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
The houses have the right to punish any person for any contempt made against the houses in the present or in the past.
THE PRESS AND PARLIAMENT
In the British era, the House of Commons enjoyed the privilege in which they prohibited the publication of the proceedings in the Legislature even if it was true and reasonable. The reason behind that was at that time the Commons wanted to establish pure dominance and were averse to any obstruction by anyone. However, after the early nineteenth century the privilege is rarely used by the commons and the publishing of the proceedings is done by the press without any hindrance.
In India, freedom of press is highly emphasized and taken care of. The freedom of press is explicitly not mentioned in our constitution, yet the framers considered this freedom as an integral part of right to freedom of speech and expression. Thus, freedom of press is considered as a fundamental right which holds the highest value in our constitution. But an unfamiliar twist came in with the Searchlight case, wherein, parliamentary privilege being a special provision was given an upper hand in comparison to the fundamental right of freedom of speech and expression which is an ordinary provision. In this case the Apex Court also held that if the parliament ever codifies the Privilege law, then being an ordinary provision it will not override the fundamental rights. Due to this fear maybe, the parliament till date has not codified the said law.
It has been around six decades since the Principle of harmonious construction has been laid down by the Apex court in the Searchlight case yet this is being applied impulsively. The recent case of (Raja Ram pal, 2007 SC 0241) in which the Apex court again had the chance to revaluate the principle but still it remained committed to the principle, is quite understandably agonizing for the press.
CONCLUSION
For the smooth operation of the parliament, the members are granted privileges. However, because they are our representatives and work for our wellbeing, these rights must always be in accordance with the fundamental right. If the privileges are not in accordance with the fundamental rights then the very essence of democracy for the protection of the rights of the citizen will be lost. It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. The members should also use their privileges wisely and not misuse them. They should always keep in mind that the powers do not make them corrupt. The parliament should only embrace those privileges that are appropriate for our Indian democracy rather than adopting every privilege that exists in the house of commons.
