Author: Neha Venkatesh, IV year of B.A.,LL.B(Hons.) From School of Law, Christ (deemed to be University), Bangalore.
This paper mainly emphasises the parliamentary privileges that are currently enjoyed by the parliamentarians. In the democratic setup, the constitution provides for certain privileges. The aim of providing the privileges to the parliamentarians allows them to express their opinions, and express the needs of the people they represent and their political stance on certain issues. The parliament establishes its own norms of procedure and maintains its own discipline, among other things, to guarantee that it can execute its obligations and perform its functions independently and freely. Parliamentary privilege, on the other hand, is frequently misconstrued by the general public, who assume that it provides special protection to the parliamentarians making them the ‘elites’ in the country.
Despite its long history, parliamentary privilege is not fixed or unchangeable. Social life has changed dramatically as a result of contemporary science and technology, which will undoubtedly impact the evolution of parliamentary privilege.
The paper to begin with covers the key features and the origin of parliamentary privilege and its theoretical background comprising of a jurisprudential analysis based on the concept of privileges given by Hofled through his jural correlatives and jural opposites. Rights and Privileges are jural opposites. Here the rights such as the right to freedom of speech and expression will be illustrated as a right and privilege analysis.
After that, the paper will discuss the challenges in the practice of parliamentary privilege, and the growth of privilege, a comparative analysis of parliamentary privileges in India with that of other countries. The paper will extensively compare the parliamentary privilege system of India with the Privilege Model of the United Kingdom, the United States. And in order to understand the same better, a few landmark judgements will be used to critically understand the national and international models.
Parliamentary privilege has a lot of detractors, thus in order to clear up the misunderstandings and strengthen the position of parliamentary privilege in people's minds, it needs to adapt and develop. As they can consequently be arbitrary, obscure, unjust, unlimited discretionary power and the misuse of the same and against the principles of democracy.
Lastly, a few suggestions regarding the enhancement of the privileges to make them more relevant in the present times will be given. According to common belief, immunity does not shield representatives from unlawful and criminal conduct. For example, if a representative at a meeting makes a speech that constitutes a crime, you must pursue their legal duties. This restores the representatives' rights granted by the constitution and the law.
The term "parliamentary privilege" refers to the right to speak freely "The sum of the peculiar 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 function... Parliamentary privileges are rights that are absolutely necessary for the proper execution of its powers... Individual Members benefit from them since the House cannot accomplish its tasks without the unrestricted use of its Members' services, and each House benefits from them for the protection of its members and the vindication of its own authority and dignity." Members of Parliament may thus claim parliamentary privilege individually or as a whole.
The majority of jurists prefer the word liberty over the term privilege. Despite Hohfeld's choice for the word privilege, these two notions occupy the same structural position in his theory. Privileges are permitted to behave in a certain manner without being held culpable for the damage caused to those who are unable to seek intervention from the authorities. "The plaintiffs have no rights to the extent that the defendants enjoy privileges," Hohfeld stated. There can't be a contradiction between privilege and rights or claims as termed by the jurist. The legal connection reveals that the individual asserting liberty has no entitlement to the activity to which liberty refers. However, this does not rule out the potential of his meddling with the proceedings.
Hohfeld recognized that there are freedoms in legal systems that aren't accompanied by duties put on others to avoid legal action and that there are frequently significant political reasons for this. Legislators are relieved of the responsibility of imposing a duty on others when someone is given legal liberty. A reasonable legislator may take advantage of political issues when determining whether or not to apply the aforementioned principles in a certain situation.
The rights enumerated in Part III of the Indian Constitution, for example, are the 'privileges' referenced by Hohfeld since they stipulate that the state has no power to interfere with the enjoyment of these freedoms.
Therefore, the parliamentary privileges is a privilege and the parliamentarians have the privilege then the others have a no-right against it. And in turn, they do not have a duty pertaining to the same.
Parliamentary privileges in Westminster systems such as Australia, New Zealand, Canada, the United Kingdom, and others are the result of a real political fight in the United Kingdom between the House of Commons and the Crown (and the House of Lords). The adoption of parliamentary privilege legislation and the application of privilege in Australia, as well as other jurisdictions that have adopted the Westminster model, has been heavily impacted by British precedent. The Commonwealth of Australia, most Australian state jurisdictions, Canada, and New Zealand, for example, have included in some form or another copies of Article 9 of the English Bill of Rights 1689. 'The freedom of expression, debates, or procedures in Parliament, ought not to be impeached or questioned in any court or venue outside of Parliament,' says Article 9.
In the United Kingdom, or materials exchanged among MPs by House order, there is an absolute common law privilege. The Parliamentary Papers Act 1840 extends this to all papers produced under the House's authority, as well as corrected copies. Extracts are also covered by qualified privilege under the Act.
At the start of each new Parliament, the Speaker asserts the Commons' historic and undeniable rights and privileges. Only Erskine May: Parliamentary Practice codifies the privileges, and the House is the only arbiter of its own privileges. The majority of the claims made are no longer valid, however some are still valid:
Firstly, Freedom of expression that is the members speaking in the House are not liable for defamation and in civil issues, freedom from arrest which are technically outdated and The Commons' access to the Crown (through the Speaker); and that the Commons' decisions should be given the most favorable interpretation possible.
The Privileges that aren't specified explicitly are First, the Right of the House to choose its own members, although election petitions are now determined by the ordinary Courts and The House has the authority to govern its own internal processes, both in terms of issues and procedures. Members and "strangers" have the right to be punished for breaches of privilege and contempt; lastly, Right to be unaffected by others although members are no longer immune from all civil actions
On the other hand, Members of the US Congress have the same parliamentary privileges as members of the British Parliament, which means they cannot be punished for whatever they say on the House or Senate floor. They also have the right to be present in Congress: they may spend the remainder of their sentence in prison or jail, but they can attend Congressional sessions, speak on the floor, vote, and so on. These rights are outlined in the Constitution and have historically been relatively uncontroversial in the United States. Courts have typically applied a relatively restricted interpretation to them. When looking at Congress' capacity to punish contempt, there are differences in the practice and approach to privilege in the United States compared to certain other countries. While privilege in the United States is founded on the Westminster model of parliamentary democracy, each state's legislature has evolved its own unique constitutional system. Early American legislators, on the other hand, looked to the English House of Commons and modelled themselves after its precedents and processes. The political climate in which these legislatures developed had a tremendous impact on them, and they developed a strong hostility to the Stuart rulers.
In Anderson v Dunn, a post-independence case, the Supreme Court recognized Congress' right to punish contempts, stating that such power was required to guarantee Congress was "not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it." While the Supreme Court had already recognized Congress' right to undertake inquiries as "inherent in the legislative process" in earlier decisions.
The Senate and House of Commons, as well as provincial legislative assemblies in Canada, adopt the British parliamentary authority's concept of parliamentary privilege.
The powers, privileges, and immunities of the Senate and the House of Representatives, and of the members and committees of each House, shall be those declared by the Parliament, and until declared, shall be those of the United Kingdom's Commons House of Parliament, and of its members and committees, at the establishment of the Commonwealth.
In 1987, the Commonwealth of Australia's Parliament defined its privileges in order to overturn two Supreme Court of New South Wales decisions that limited parliament's right to freedom of expression. The cases in issue concerned whether witnesses who testified before a parliamentary committee might be cross-examined on such testimony during a criminal prosecution. The Senate contended that such evidence might be used to prove some significant fact, such as that a person testified before a committee at a certain time, but that it could not be used to assist either the prosecution or the defense.
Articles 105 and 194 of the Indian Constitution establish the privileges of parliament and state legislatures, respectively.
Articles 105(3) and 194(3) state categorically that the powers, privileges, and immunities of each House shall be such as may be defined by parliament by law; the provision also states that, until such law is made, the House and its members shall enjoy all the rights that "shall be those of the House of Commons and its members and committees, immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, immediately before the coming into force of section 15
However, a comprehensive codification is required as only those privileges will be codified by the legislature that are acceptable to the executive administration of the day and have a majority in the legislature. Privileges, on the other hand, should not be limited to the governing party or parties, but should apply to all members. The overall effect would be a reduction in privileges.
Codification will crystallize privileges, leaving no room for interpretation of privileges as they now exist in the British Parliament to broaden or amend them. Today, there is a chance to adapt the concepts that underpin privileges in the United Kingdom to Indian situations.
However, in light of the greater public interest and democratic norms, the prospect of a few privileges being curtailed seems to be too weak and fragile to be maintained.