Context: Recently, the Supreme Court declared that a member of the legislature cannot claim parliamentary privileges or immunity to acts of vandalism or destruction of properties inside the House.

Issue

• Kerala government had appealed to the Supreme Court to withdraw a criminal case against their leaders who destroyed public property and disrupted a Budget speech on the State Assembly floor in 2015, but, the Supreme Court has rejected Kerala government’s plea.

Arguments put forth by the Kerala Government

• The Kerala Government had claimed parliamentary privilege, arguing that the incident occurred inside the Assembly Hall, hence, claiming immunity from criminal prosecution.
• They had argued that the prior sanction of the Speaker was necessary before the registration of an FIR by the police.

Key highlights of the Judgement on Immunity for Vandalism

• The Supreme Court held that Parliamentary Privileges are Not Gateways of Immunity and that the legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.
• Lawmakers possess privileges that are essential for exercising public functions – however, Vandalism is Not an Essential Legislative Action and hence cannot be protected.
• Vandalism on the Assembly floor could not be equated with the right to protest by Opposition legislators and Destruction of public property could not be equated with the exercise of freedom of speech.
• No member of an elected legislature can claim either a privilege or immunity to stand above the sanctions of the criminal law (Prevention of Damage to Public Property Act, 1984), which applies equally to all citizens.
• Legislators should act within the parameters of the public trust imposed on them to do their duty and have to uphold the sovereignty and integrity of India and had to perform the duty imposed on them by the people who elected them.

Introduction to privileges and immunities enjoyed by legislators

• Parliamentary privileges are certain rights and immunities enjoyed by members of Parliament, individually and collectively, so that they can “effectively discharge their functions”. When any of these rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under law of Parliament.
• Article 105 for Parliament and Article 194 for State Assemblies mention freedom of speech in Parliament and Right of Publication of its proceedings.
• 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.
• The privileges given to the members are necessary for exercising constitutional functions. These privileges are essential so that the proceedings and functions can be made in a disciplined and undisturbed manner.
• Under Article 118 Each House of Parliament has the power to make rules and regulates its proceeding and conduct of its business.
• 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.

Individual Rights of Members of the Parliament
Freedom of speech in parliament

• The special freedom of speech and expression provided to a member of the parliament 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.
• No member can be taken to task anywhere outside the four walls of the House (e.g., court of law) or cannot be discriminated against for expressing his/her views in the House and its Committees.
• This right is given even to non-members who have a right to speak in the house such as Attorney general.
• 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.
• It is important to note that although a member has the privilege of freedom of speech in Parliament, he/she has no right to publish it outside Parliament.

Freedom from arrest

• The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session.
• No member can be arrested from the limits of the parliament without the permission of the house to which he/she belongs so that there is no hindrance in performing their duties.
• 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.

Freedom from appearing as a witness

• The members of the parliament enjoy special privileges and are exempted from attending court as a witness.
• They are given complete liberty to attend the house and perform their duties without any interference from the court.

Privileges enjoyed collectively as part of parliament
Right of Publication of its proceedings

• No person shall be held liable for publishing any reports, discussions etc., of the house under the authority of the member of the house.
• But, any partial report of detached part of proceedings or any publication made with malice intention is disentitled for the protection. Protection is only granted if it reflects the true proceedings of the house.

Right to exclude strangers

• The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings.
• This right is very essential for securing free and fair discussion in the house.
• If any breach is reported then the punishment in the form of admonition, reprimand, or imprisonment can be given.

Punishing for breach of its privileges

• The Indian Parliament has the power to punish any person whether strangers or any member of the house for any breach or contempt of the house. When any breach is committed by the member of the house, he/she is expelled from the house.
• This right has been defined as ‘keystone of parliamentary privilege’ because, without this power, the house can suffer contempt and breach and is very necessary to safeguard its authority and discharge its functions.

The right to regulate the internal affairs of the house

• Each house has a right to regulate its proceedings in the way it deems fit and proper. Each house has its own jurisdiction over the house and no authority from the other house can interfere in regulation of its internal proceedings.
• Under Article 118 of the Constitution, the houses have been empowered to conduct the regulation for proceedings and this cannot be challenged in the court of law on the ground that the house is not in accordance with the rules made under Article 118.
• The Supreme Court has also held that this is general provision and the rule is not binding upon the house. They can deviate or change the rule anytime accordingly.