Author: Tanishka Jain, I year of B.A.,LL.B.(Hons.) from Maharashtra National Law University, Nagpur
INTRODUCTION
It goes without saying that the foundation of a democratic framework and the entire constitutional system is parliamentary functioning. A democracy is defined by free, open, and fearless debate in the legislature. To allow them to do so without fear of repercussions for offences like defamation and other similar ones, all members of the houses have been given a number of powers. In order for the members of the houses to exercise their authority effectively and efficiently, the Parliament has granted them specific privileges. These privileges are known as Parliamentary privileges. Sir John Eliot and the Bill of Rights, landmark case that occurred in the United Kingdom in 1688, established the rule that, “the freedom of speech and debate in parliament should not be questioned anywhere else.” Due to our adoption of Britain's parliamentary system of governance, we also embraced the idea of parliamentary privileges. The Constitution, on the other hand, ensures that every citizen has unalienable, sacred, and basic rights known as fundamental rights. There have been various discussions on whether parliamentary privilege should be constrained by fundamental rights or vice versa, as well as which would take precedence in the event of a conflict. Various judicial pronouncements have been issued.
GENERAL IDEA OF PRIVILEGES AND FUNDAMENTAL RIGHTS
The term "privilege" is derived from the Latin word "privilegium," which means “a special law passed in favour of or against a specific person.” In “Raja Ram Pal v. Lok Sabha Speaker[i]”, the apex Court interpreted privilege as “a special right, advantage, or benefit conferred on a particular person; it is a peculiar advantage or favour granted to one person as opposed to another to do certain acts.”Following these ideas, it is clear that privileges granted to parliamentarians are specific rightsor protections given to all parliamentary members and members of state assembliesin order for them to express their views or discharge their duties freely and without trepidation.
On the other hand, all Indian citizens are given fundamental rights under Part III of the Indian Constitution. The term "fundamental rights" refers to human rights that are both essential and inviolable[ii]. These rights support the principles of liberty, equality, and human dignity. They imposed a number of constraints on tyrannical actions[iii].They guard against state infringement on a person's dignity, liberty, and freedom. Rights granted to citizensin Part III of the constitution have always been conflicted with the legislative privileges granted tomembers of the houses.
CONSTITUTIONAL PROVISIONS RELATED TO PRIVILEGES
The privileges that members of parliament are granted are outlined in Article 105. The rights granted to members of the state legislative assembly are similarly addressed under Art. 194. Article 105 is interpreted in the same way as Article 194 since both provisions are deemed to have the same effect.
All privileges are not, however, encompassed by the aforementioned clause It explicitly grants few privileges, and the remaining provisions confine a House's power to that of the British House of Commons. It should be noted that parliamentary privileges are also available to those who are authorised to speak and participate in the proceedings of a House or any of its committees despite not being members of that House. Ministers or Attorneys General can be among these figures. It should be noted that these authorities are not absolute. Members' freedom of expression is limited by rules of procedure of the House established by Art 203 so that it can be used responsibly. According to Rules 349 to 356 of lower house, members are not allowed to use unparliamentary language or behaviour. The constitution's Articles 121 and 211 also place restrictions on this power. In addition, members are not entitled to exercise any of their rights outside of the home.
NEED FOR PRIVILEGES
The main goal of parliamentary privileges and immunities is to make sure that legislative duties are carried out effectively. “Certain powers and privileges have been granted to the representatives in order for the parliament to function independently, efficiently, fearlessly, and to represent the views or will of we the people of India.” “Privileges also protect each house's independence, authority, and dignity.” In actuality, they shield lawmakers from unjustified legal pressure. The Supreme Court ruled in “Kalpana Mehta v. Union of India[iv]” that free expression is a cornerstone of democratic government. The representatives of the public must speak up boldly on matters that matter to their constituency.
Parliamentary privileges guaranteed by the constitution
Freedom to speak in the house of parliament and Legislative assembly of all states
According to Article 105(1) of the Indian Constitution, “subject to the provisions of the Constitution of India and the rules and standing orders regarding the procedure of the Parliament, there shall be freedom of speech in the Parliament”. For everything spoken while the house or its committees are in session, the article provides complete immunity from legal action. Discussion on the actions and conduct of judicial bodies and judges of high court and supreme court is prohibited under article 121 of the constitution except when a motion is passed against
Right of Publication of its proceedings
No one shall be accountable with respect to the publishing by order under the authority of a house of Parliament of any report, document, votes, or proceedings, according to Clause (2) of Article 105.A breach of the House's privilege is committed by publishing a speech that had been expunged.
Freedom of Arrest
A member of the Parliament is not permitted to be detained or imprisoned in connection with any civil case 40 days prior to and 40 days following the session of the house. member who is detained during this time must be immediately released so that he or she can attend the Parliamentary session.
Right to convene secret sessions and bar outsiders from watching parliament proceedings
India's Parliament enjoys the luxury of participating on secret missions to address and discuss some significant issues but it can be conducted special conditions because the people must be aware of what their legislators are doing
Right to regulate internal proceedings
The House of parliament has the sole authority to control its internal processes or make decisions in certain situations. As mentioned in Article 122(1), A claim of a procedural irregularity cannot be brought in court to challenge the legality of the Parliament's operations.
Right to penalizeoutsiders or members for derision and disrespect
A member or outsider who "contempts the court" or "breaches privilege" may be punished by the Parliament. A member could be put on administrative leave, kicked out of the house, or even imprisoned. Fundamental rights are provided to every citizen.Article 105 states that the members of Parliament have absolute privileges with regard to their actions and proceedings. Every person is guaranteed the right to freedom of speech and expression by Article19(1)(a), however these rights are subject to reasonable limitations under Article19 (2). Despite the fact that the privilege within Article 105 is distinct and exempt from Article 19 restrictions (2). Therefore, it might be argued that the limited freedom of speech protected by Article 19 and the unrestricted freedom of expression granted by Article 105 are different.
THE CONFLICTING JURISPRUDENCE OF THE PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS
In the case of GunupatiKeshavram Reddy v. NafisulHasana and the state of U.P[v], the court was confronted for the first time with the tension between privilege and fundamental rights. In this instance, The Blitz dissed the U.P. legislative assembly speaker in a news article that was published. The House Committee on Privileges was been asked to look into this issue. The editor of the Blitz, D.H. Mistry, was called before the House and asked to give a strong defence for his conduct. On the other side, D.H. Mistry remained silent and refused to come before the house. The assembly as a consequence adopted a resolution ordering the speaker to issue an arrest warrant and ensure his presence in the house. As a result of his violation of parliamentary privileges, Mistry was taken into custody. He was kept in a hotel for a week. He requested a warrant of habeas corpus from the Supreme Court, arguing that his basic right protected by Art. 22(2) had been infringed. The argument that Mistry was not brought before a magistrate within the allotted time was accepted by the Supreme Court. His fundamental right, protected by Art. 22.(2), had therefore been compromised. The judge ordered him freedom. A close examination of this ruling indicates that it proclaimed fundamental rights to be more important than parliamentary privileges. However, later court's rulings have altered this idea. He petitioned the Supreme Court under Article 32, alleging that the notification and the committee's suggested action infringed on his Fundamental Right to Free Expression, which is protected by Article 19. (1). (a). However, his argument was rejected by the Supreme Court. The petitioner further asserted that his fundamental rights to life and liberty, as protected by Art. 21 of the Constitution, were infringed during the hearings before the Committee of Privileges. The court dismissed this argument, pointing out that the House is empowered to set rules under Article 118 in the case of a House of Parliament and Article 208 in the case of a House of State Legislature. In accordance with Art. 32, the petitioner went back to court to ask for the earlier judgement to be reviewed.The court, however, turned down the request for a review of the earlier judgement. Since Art. 19(1)(a) does not apply to the privileges enjoyed by a House of Parliament or a state legislature under Articles 105(3) and 194(3), respectively, the House was free to forbid the publication of any account of its discussions or proceedings, even if doing so would have violated the publisher's fundamental right to free expression.
An arrest warrant was issued for Keshav Singh in the renowned and intriguing case of In re Keshav Singh for contempt of house for sending an insulting letter to the speaker. He was so detained and given a 7-day jail term. He filed a petition of habeas corpus.He received bail
The legislature adopted a resolution after his release declaring that the Judges, an attorney, and Keshav Singh had all broken the law. That was a home order. They should all be detained and hauled before the house. Conversely, all four participants claimed they were in contempt of the court in a separate petition submitted to the high court. This28 judges on a panel halted the order. The house ultimately revoked the warrant and In the meantime, the president asked the Supreme Court pursuant to Article 143 for its guidance. Three significant issues were raised.
1. Whether the legislature is the sole and final arbiter of its privileges
2. Whether any house has the authority to punish a person for acts of contempt committed outside the house
According to the Supreme Court, the house is the only and last arbiter. Second, it has the power to penalise an individual for disrespectful behaviour displayed outside the house. In response to the third concern, the Supreme Court ruled that the high courts and the Supreme Court have exclusive authority over judicial review and that no order or issuance may be seen as a breach of the House's decorum.
According to the Supreme Court, the privileges would take precedence over the right to free expression protected by Article 19(1)(a), and Articles 21 and 20 would take precedence over the privileges.The Supreme Court held in “Tej Kiran Jain and Others v. Sanjiva Reddy and Others[vi]” that lawmakers cannot be sued for defamation based on their legislative comments.Similar to this, 11 members of parliament were caught on tape receiving bribes by a television station in Raja Ram Pal v. Lok Sabha Speaker [vii]. The parliament was in a frenzy and ordered an inquiry immediately . The privileges committee looked into this issue and concluded that all of the, are guilty. Through writ petitions, they requested reinstatement from the Supreme Court.
"We hold that the broad contention on behalf of the Union of India that the exercise of Parliamentary privileges cannot be decided against the touchstone of fundamental rights or constitutional provisions is not correct," the court said in reference to the law established in the two cases of Pandit Sharma and the case of the U.P. Assembly.
The court, on a case-by-case basis clearly established that fundamental rights come before privileges. Additionally, the courtgranted itself the power to carry out an investigation utilising the legality and constitutionality standards.
A DISTINCTION BETWEEN PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHT TO FREE SPEAK FREELY
The contrast between basic rights and privileges granted to is comprehensively examined in the case of “AlagaapuramR.Mohanraj v. Tamil Nadu Legislative Assembly[viii]”. The primary identifying traits are as follows:
All Indian citizens have the basic right to free speech and expression, according to Article 19(1). (A) but the freedom of speech guaranteed by Articles 105 and 194 is solely available to members of legislativebodies. Hence, it is clear that only members of the Council can use Articles 105 and 194.
The freedom of expression guaranteed by Articles 105 and 194 may only be exercised by people while they are members of legislative bodies.Nevertheless, because rights as citizens are seldom removed, the basic right under Article 19(1)(a) is inalienable.
The right granted by art. 19(1)(a) is subject to the exceptions set forth in art. 19(1). (2). A legislator's right to free speech, on the other hand, is not subject to such legal constraints. Nonetheless, as stated in the opening clauses of articles 105 and 194, such power is subject to "other provisions of the Constitution as well as the rules and standing orders regulating the procedure of the legislative bodies." Articles 121 and 211 expressly limit this power by prohibiting any discussion in legislative bodies about the conduct of any Supreme Court or High Court Judge in the discharge of his/her duties. As a result, it is clear that the scope of the right to free speech and expression granted to citizens and members of legislative bodies is entirely different.
CONCLUSION
The main goal of parliamentary privileges and immunities is to make sure that legislative duties are carried out effectively. “Certain powers and privileges have been granted to the representatives in order for the parliament to function independently, efficiently, fearlessly, and to represent the views or will of we the people of India.” “Privileges also protect each house's independence, authority, and dignity” This are indeed necessary for governing a country. There are instances when there were conflict between Parliamentary privileges and Fundamental rights but Supreme court in its subsequent judgment made it clear that Parliamentary privileges are equally important but cannot supersede fundamental rights of individual. Hence privileges, constitutional rights, lok Sabha rules, fundamental rights prevail under a single umbrella.
SUGGESTIONS
Granting immunity to parliamentarians is necessary. During the instances of misuse Supreme court can intervene and make sure that they are not used against fundamental rights. In such a way by giving privilege legislative duty can be carried out effectively and simultaneously not breaching the fundamental rights guaranteed by the constitution.
Parliament can draw line by some implementing certain legislations which can keep check and at times intervene and prevent misuse of parliamentary privileges by the parliamentarians.
[i]Raja Ram Pal v Hon'ble Speaker, Lok Sabha &Ors. (2007) 3 SCC 184. [ii]M. Nagaraj And Others v. Union Of India And Others (2006) 8 SCC 212 [iii]Maneka Gandhi v. Union Of India 1978 A.I.R. 597 [iv]Kalpana Mehta v. Union of IndiaLNIND 2018 SC 286 [v]GunupatiKeshavram Reddy v. NafisulHasana and the state of U.PAIR 1954 SC 636 [vi]Tej Kiran Jain and Others v. Sanjiva Reddy and OthersAIR 1959 SC 395 [vii]Raja Ram Pal v. Lok Sabha Speaker AIR 1960 SC 1186 [viii]AlagaapuramR.Mohanrajv. Tamil Nadu Legislative Assembly[2016] 2 MLJ 148