What are the different parliamentary privileges provided in Indian Constitution. Parliamentary Privileges performance of its legislative functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings

 Introduction:

        The term parliamentary privileges is used in Constitutional writings to denote both these types of rights and immunities. Sir Thomas Erskine May has defined the expression ‘Parliamentary privileges’ as follows: The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the High Court of Parliament, and by members of each house of parliament individually, without which they cannot discharge their functions, and which exceed those possessed by other bodies or individuals. Parliamentary privileges-this article defines parliamentary privileges of both Houses of Parliament and of their members and committees. Article 194, which is an exact reproduction of Article 105, deals with the State Legislatures and their members and committees.

Parliamentary Privileges

A.105.Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof

1. Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

2. No member of Parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of each House of Parliament, and the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, [shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (44th Amendment) Act, 1978].

4. The provision of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to the members of Parliament..

Freedom of speech

Article 105, clause (1), expressly safeguards freedom of speech in parliament. It says: there shall be freedom of speech in parliament. 

Clause (2) further provides 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. 

No action, civil or criminal, will therefore lie against a member for defamation or the like in respect of things said in parliament or its committees. 

The immunity is not limited to mere spoken words; it extends to votes, as clause (2) specifically declares, viz. any vote given by him in parliament or any committee thereof. Though not expressly stated, the freedom of speech would extend to other acts also done in connection with the proceedings of each House, such as, for notices of motions, questions, reports of the committee, or the resolutions.

Article 105 (2) 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 business of Parliament. Once it was proved that Parliament was sitting and its business was transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but it is as it should be. It is one of the essence of parliamentary system of government that people's representative should be free to express themselves without fear of legal expenses..

In a much publicized matter involving former Prime Minister, several ministers, Members of Parliament and others a divided Court, in P.V.Narsimha Rao v. State (AIR1998) has held that the privilege of immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament.

     The majority (3 judges) did not agree with the minority (2 judges) that the words in respect of in Article 105 (2) mean, arising out of and therefore would not cover conduct antecedent to speech or voting in Parliament. The court was however unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in the voting could not claim immunity from court proceeding's under Article 105 (2). The decision has invoked so much controversy and dissatisfaction that a review petition is pending in the court.

Right of Publication of proceedings

Clause (2) of Article 105 expressly declares that no person shall be liable in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings. Common law accords the defence of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere. In Wason v. Walter (1868), Cockburn, C.J. observed that it was of paramount public and national importance that parliamentary proceedings should be communicated to public, which has the deepest interest in knowing what passes in Parliament. But a partial report or a report of detached part of proceedings published with intent to injure individuals will be disentitled to protection. The same is the law in India. 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.

Other privileges

    Clause (3) of Article 105, as amended declares that the privileges of each House of Parliament, its members and committees shall be such as determined by Parliament from time to time and until Parliament does so, which it has not yet done, shall be such as on 20th June 1979 i.e., on the date of commencement of Section 15 of the 44th Amendment.  Similarly, a general warrant of arrest issued by Parliament in India cannot claim to be regarded as a court of record in any sense . Also the privilege of the two Houses of Parliament, unlike the privileges of the House of Commons and House of Lords in England are identical. To each House of Parliament, accordingly, belong the privileges, which are possessed by the House of Commons in the United Kingdom.

In Pandit M.S.M Sharma v. Shri Krishna Sinha(air-1958) 

     The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgment, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.

    Now Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses.

Freedom from Arrest- The Member of Parliament also enjoy freedom from arrest. From this freedom it is understood that no such member shall be arrested in a civil case 40 days before and after the adjournment of the house (Lok Sabha and Rajya Sabha) and also when the house is in session.

    It also means that no member can be arrested within the precincts of the Parliament without the permission of the House to which he/she belongs. When a member of the house is arrested or detained, the authority concerned should immediately inform the speaker or the Chairman regarding the reasons for such arrest. 

Freedom of attendance as witnesses- The members of parliament also enjoys freedom from attendance as witnesses.

Right to control publication of proceedings

    Closely allied to the power to exclude strangers is the power of the House to prohibit publication of its debates and proceedings. Under the Constitution, absolute immunity from proceedings in any court of law has been conferred on all persons connected with the publication of proceedings of either House of Parliament, if such publication is made by or under the authority of the House. The publication of proceedings of Parliament is subject to the control of the respective Houses.

Power of the House to punish for breach of privilege or contempt

    The power of the House to punish for contempt or breach of privilege has been aptly described as the "keystone of parliamentary privilege" and is considered necessary to enable the House to discharge its functions and safeguard its authority and privilege. Without such a power the House "would sink into utter contempt and inefficiency." This power has been judicially upheld in a number of court case. 

    The period for which the House can commit an offender to custody or prison for contempt is limited to the duration of the session of the House, i.e., when the House is prorogued.

Law Courts and Privileges Article 105, so also Article 194 subjects the powers, privileges and immunities of each House as well as all its members and all its committees not only to the laws made by the appropriate legislature but also to all other provisions of the Constitution. Both these articles far from dealing with the legislative powers of the Houses of Parliament or of State Legislature respectively are confined in scope to such powers of each House as it may exercise separately functioning as a House.

    A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice can, but it can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities in order to seek removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law in appropriate proceedings. For example, the jurisdiction to try a criminal offence such as murder, committed even within a House vests in ordinary courts and not in a of Parliament or in a State Legislature. Also, a House of Parliament or State Legislature cannot in exercise of any supposed powers under Articles 105 and 194 decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329.

Parliamentary Privileges and Fundamental Rights In Pandit M.S.M. Sharma's case 

    In Sharma's case the Court held that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any violation of it. In Powers, Privileges and Immunities of the State Legislature, Re , the proposition laid down in Sharma's case was explained not to mean that in all cases the privileges shall override the fundamental rights.

Article 194

Powers, privileges, etc., of the Houses of Legislature and of the members and committees thereof.

1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

2. No member of the Legislature of a State shall be liable to any proceeding in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

3. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may be defined from time to time be defined by the Legislature by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty Fourth Amendment) Act, 1978.

4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.

Conclusion

    There is a clear demarcation as to what all rights and privileges are absolute and what are not. For example, in India Legislative Assemblies and Parliament never discharge any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of record in any sense. No immunity from scrutiny by courts of general warrants issued by House in India can therefore be claimed. Both the Parliament and State Legislatures have a duty to look carefully before making any law, so that it doesn't harm other rights. It is also a duty of the members to properly use these privileges and not misuse them for alternate purposes that is not in the favour of general interest of nation and public at large. Thus what we must keep in mind is the fact that ?power corrupts and absolute power corrupts absolutely. For this not to happen under the privileges granted, the public and the other governing body should always be on vigil.