Parliamentary Privileges And Fundamental Rights | Overview

Parliamentary Privileges and their relationship with Fundamental Rights provide the basis of our understanding of the amenities enjoyed by the Members of the Parliament. It regulates the idea of power and determines the use of such freedom in making vital laws for the citizens of the country.

Parliamentary Privileges And Fundamental Rights

Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution. According to the Constitution, the powers, privileges and immunities of Parliament and MP’s are to be defined by Parliament.

No law has so far been enacted in this respect. In the absence of any such law, it continues to be governed by British Parliamentary conventions.[1] Therefore, it can be seen that the concept has been borrowed from England. The relevant article of the Constitution with respect to parliamentary privileges is Article 105.

Parliamentary privileges provide legal immunity which is enjoyed by each House collectively and all members individually. They provide protection against civil and criminal liability for actions done and statements made by the members during their legislative functions.

They can be of two types, namely, absolute or qualified.

Absolute privileges mean that there is absolutely no restriction on Members of the Parliament with respect to their conduct and they have absolute immunity, while qualified privileges come with some kind of restrictions. The reason for providing these privileges is to maintain the independence of action and facilitate free discussion and debate in the Parliament and the Legislature where laws for the country and the states are made and formulated.

In order to ensure that all kinds and sorts of opinions and views are taken into account and find a space in the discussion, absolute privilege is granted. This is in line with the democratic ideal followed by the country and its lawmakers. To control the behaviour and conduct of Parliamentarians, internal procedural rules are formulated by the both Houses (Lok Sabha and Rajya Sabha) and the state legislatures, to ensure that unparliamentary language is not made use of, and that ruckus and indiscipline is not created.

Therefore, it can be understood that these privileges, though part of the law of the land, are to a certain extent an exemption from the ordinary law.

Relationship Between Parliamentary Privileges and Fundamental Rights and the Issue which Arise in Their Conflict

Under Article 105(3), Parliament may pass a law to define its privileges while any law in contravention with any of the fundamental rights will be invalid. If the legislature of a state under the first part of clause (3) makes a law which prescribes its powers, privileges and immunities, such law must be subject to Article 13 and it would be void if it contravenes or abridges the Fundamental Rights.

One point of conflict is between the parliamentary privilege of the right to prohibit publication of proceedings, and the freedom of press coming within the Fundamental Right of Freedom of Speech and Expression which should allow for publication of parliamentary proceedings. Another point of conflict is that the rights provided under Article 105 are independent rights and are not subject to reasonable restrictions under clause (2) of Article 19(1).

A legal question of interpretation and judgement arises as to which will prevail in case of conflict between Fundamental Rights and privileges and immunities of Parliament or the State Legislature. Four landmark Supreme Court decisions have interpreted these provisions.

The key question in each case has been this: Can a privilege or the exercise of privilege be struck down if it violates a Fundamental Right? Would Fundamental Rights override the privileges and would privilege be subject and subservient to Fundamental Rights? Put differently, does the power of Judicial Review extend to Parliamentary privileges?

Landmark Judgements

1. G.K. Reddy v. Nafisul Hassan, 1954

The first Supreme Court case on the point was that of G.K. Reddy v. Nafisul Hassan[2]. G.K. Reddy, the editor of the magazine Blitz was committed for contempt by the Uttar Pradesh Legislature. In the Supreme Court, the Attorney General admitted that Reddy had not been produced before a Magistrate within 24 hours.

The Supreme Court held that his Fundamental Right under Article 22(2) had been violated and ordered his release. However, the Court did not enter into the larger question of whether privileges would be subject and subservient to Fundamental Rights.

2. Pandit M.S.M. Sharma v. S.K. Sinha, 1959

Five years later, the GK Reddy case was overruled by the Supreme Court in Pandit M.S.M. Sharma v. S.K. Sinha[3]. In 1954, the Editor of a newspaper Searchlight was held guilty of contempt of the Bihar State Legislature when his newspaper carried a report of proceedings expunged by the Speaker of the Bihar Legislature. The editor applied to the Supreme Court seeking an injunction of the contempt proceedings, defending the publication of the report as being protected by the freedom of speech and expression guaranteed by Article 19(1)(a).

This argument was in furtherance of the general proposition that the guaranteed Fundamental Rights of citizens would be applicable to the privileges and that the privileges would be subject and subservient to them. He further contended that his right to life and personal liberty guaranteed by Article 21 would be violated if he were produced before the Committee of Privileges of the Bihar Legislature, which was empowered to order his imprisonment.

He argued that the procedure likely to be followed by the Committee was not ‘law’ within the meaning of Article 21. He contended that the intent of the Constituent Assembly was that the privileges should be codified eventually. Once codified, they would be ‘law’ within the meaning of Article 13(2) and therefore liable to be struck down if they violated any Fundamental Right.

Since a codified ‘law’ would be subject to Article 19(1)(a), it could not have been the intention of the Framers that the law when still uncodified, should not be so subject. It was urged that the uncodified law too should be made subject to the Fundamental Right of speech and expression guaranteed by Article 19(1)(a). The G.K. Reddy case was cited as well.

The Court held that the freedom of speech in a Legislature contained in Article 194(1) was specific as compared to the general freedom of speech under Article 19(1)(a). Therefore, the general restrictions that applied to 19(1)(a) by virtue of Article 19(2) would not apply to specific freedom of speech under Article 194(1).

Further, it was not the intention of the Framers to make the immunity for speeches made or votes given in a legislature subject to the Fundamental Right provided by Article 19(1)(a). Therefore, it was held that the more specific privileges in Article 194 available to Parliament would override the general rights of their constituents contained in Article 19(1)(a) and hence the privileges of a Legislature would not be subject to Fundamental Rights.

3. Re: Presidential Reference, 1965

In Re: Presidential Reference[4] one of the first open standoffs between the Courts and the Legislatures surfaced. The Uttar Pradesh Legislature found a private citizen, Keshav Singh guilty of contempt of the Legislature as he had printed and published certain contemptuous pamphlets. He was summoned to the Legislature.

Thereafter, he wrote a disrespectful letter to the Speaker and acted in an unruly manner when being reprimanded in the Legislature. A warrant was issued by the Speaker for Keshav Singh’s detention for a period of seven days. Keshav Singh moved the High Court of Uttar Pradesh seeking issuance of the writ of Habeas Corpus. A Division Bench ordered his release on interim bail.

In an unprecedented move, the Uttar Pradesh Legislature issued Contempt notices not just to the lawyer of the accused but also to the Judges of the High Court for having entertained the petition. The Legislature passed a resolution to the effect that all of them including the High Court judges were to be produced before it in custody. This marked the beginnings of a first-rate Constitutional crisis.

The following day, Mandamus petitions were filed by the judges as well as the advocate for Keshav Singh before the Uttar Pradesh High Court. A Full Bench of the Uttar Pradesh High Court comprising 28 Judges (all except the two Judges) made directions restraining the Speaker of the Legislature from issuing warrants and restraining the Marshal of the House from executing the warrant if it had already been issued.

Taking note of the rapidly deteriorating situation, the President of India, exercising his discretionary power of a Reference, sought the Supreme Court’s opinion on the issues involved. A bench of seven Judges, led by Chief Justice Gajendragadkar placed a radically different interpretation on the law of privileges, making them generally subject to Fundamental Rights and secured for itself the power to determine the legality and constitutionality of legislative procedure.

However, being an advisory opinion, it did not enjoy the same force as an actually decided case. The ruling was rejected by the Uttar Pradesh Legislature as being advisory and obiter dicta. However, it marked the beginning in the subservience of privileges to Fundamental Rights.

4. Raja Ram Pal Case, 2007

Subsequent reasoning was adopted in the Raja Ram Pal case[5] giving it the force of settled law. In this case, 11 MPs were caught taking bribes on camera by a news channel. The video which was telecast repeatedly led to an uproar. In a quick reaction, Parliament stepped in to control the damage. Immediate inquiries were ordered and expeditious verdicts sought.

The Committee of Privileges which heard the matter found all the MPs guilty and recommended their immediate disqualification. The recommendations were accepted and all 11 MPs were disqualified. The MPs filed writ petitions in the Supreme Court seeking reinstatement. The Court, in this case, used the opportunity to formalise the change sought to be brought about by the Presidential Reference and secured for itself the power to review the exercise of privileges by Parliament.

The Court reserved for itself the power to review Parliamentary proceedings. Rejecting the Doctrine of Exclusive Cognisance of Parliament, the Court held that the doctrine was applicable only in England where Parliament was sovereign and was incapable of being imported into India’s limited Constitution with its system of checks and balances.

The Supreme Court judgment in the Raja Ram Pal case is the first binding change in the law of privileges. The Court, whether out of a desire to bring about political reform or otherwise, has conclusively wrested for itself the power to review an exercise of privileges.

The review rests on the tests of legality and constitutionality. While legality refers to the absence of bonafide, constitutionality includes the test of Fundamental Rights. As a result, in every case where a privilege interferes with or abrogates any Fundamental Right, the exercise of the privilege is liable to be struck down.

The judgment makes Parliamentary privileges subservient to Fundamental Rights on a case to case basis and makes the Supreme Court the ultimate arbiter in determining when a Right has been violated and when it has not. The judgment is in keeping with the central theme of separation and balance of powers which permeates through our Constitution and in step with the Supreme Court’s activist approach.

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[1] Parliamentary Privilege FAQs, PRS Legislative Research, 1 September 2011, available at https://www.prsindia.org/theprsblog/parliamentary-privilege-faqs.

[2] AIR 1954 S.C. 636.

[3] AIR 1959 S.C. 395.

[4] (1965) 1 S.C.R. 413.

[5] Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha JT 2007 (2) SC 1.

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