Dispute between Fundamental Rights of Citizens and Privileges of the Legislature

Indian Polity Indian Parliament

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Article 105 and 194 of the constitution of India deals with the power, privileges and immunities of

parliament and its members and of their state legislature and their members respectively.

Privileges can be classified in two parts :

Individual privileges :

Freedom of Speech No member is liable to any proceedings in any court for anything said or any vote given by him in Parliament.
Freedom from arrest He can’t be arrested during the session of Parliament and 40 days before the beginning and 40 days after the end of a session.
Exemption from jury service.

Collective privileges :

Right to publish reports, debates and proceedings and also the right to prohibit others from doing it.
Right to exclude strangers from its proceedings and hold secret sittings.
The right to punish members and outsiders for breach of its privileges.
The right to regulate the internal affairs of the House.

Thus, the legislators are granted with some special rights as compared to normal citizens. This is to ensure the independence and effectiveness of their actions. Without these, the Houses can neither maintain their authority, dignity and honor nor can protect their members from any obstruction in the discharge of their parliamentary responsibilities.

However, of late civil rights activists have raised voice against such privileges and the major argument

is, why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subject

to the sovereignty and integrity of the nation, public order, friendly relations with foreign states, incitement of an offence or defamation as mentioned in Article 19(2). The ‘sovereign people of India’ have a restricted right to free speech but ‘their servants or representatives’ have an absolute

freedom of speech in the Houses. There can be some rationalization regarding these, particularly

regarding some protections like, freedom from arrest.

Judicial Review of Parliamentary Privileges :

Parliamentary privileges are the special right, advantage or benefit conferred on a particular person.

It is a peculiar advantage or favour granted to one person as against another to do certain acts”.

Parliamentary privileges can be classified into two broad categories:

Those that are enjoyed by each House of Parliament collectively, and
Those that are enjoyed by the members individually.

Article 105 of the Constitution relating to the “Powers, privileges and immunities of Parliament and its members” and Article 194 relating to the State Legislatures and their members contain certain enumerated privileges and powers while leaving room for a large number of uncodified and unenumerated privileges to continue.

So, the privileges are discussed below :

Privileges of Parliamentarians :

Freedom of Speech: According to the Indian Constitution, the members of Parliament enjoy freedom of speech and expression.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
Freedom from Arrest: It is understood that no member shall be arrested in a civil case 40 days before and after the adjournment of the House (Lok Sabha or 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.
Exemption from attendance as witnesses: The members of Parliament also enjoy freedom from attendance as witnesses.

Privileges of Parliament (both the houses) :

Right to publish debates and proceedings: Though by convention, the Parliament does not prohibit the press to publish its proceedings, yet technically the House has every such right to forbid such publication.Again, while a member has the privilege of freedom of speech in Parliament, he has no right to publish it outside Parliament. Anyone violating this rule can be held responsible for any libelous matter it may contain under the common law rules
Right to exclude strangers: Each house of Parliament enjoys the right to exclude strangers (nomembers or visitors) from the galleries at any time and to resolve to debate with closed doors.
Right to punish members and outsiders for breach of its privileges: In India, the Parliament has been given punitive powers to punish those who are adjudged guilty of contempt of the House. Such contempt can be committed by the members of any House or any outsider. When a member of the House is involved for parliamentary misbehavior or commits contempt he can be expelled from the House.
Right to regulate the internal affairs of the House: The House has the right to regulate its internal affairs. A member of the House is free to say whatever he likes subject only to the internal discipline of the House or the Committee concerned.

Judicial review of Parliamentary Privileges:

The issue of Parliamentary privileges places judiciary and legislature at the loggerhead. On one hand Parliament claims absolute sovereignty in the matters of its privileges, while on the other hand, the Judiciary as a custodian of Indian Constitution do not admit any restraint on its power of judicial review.

The Judiciary shoulders the primary responsibility of protecting the fundamental rights of the citizens

in India, and if any citizen comes to it claiming violation of the same, the Judiciary has to entertain his petition, even though it might be related to Parliamentary privileges.

The question of ParliamentCourt relationship often arises in privilege matters.

This involves several postulates:

Who; whether the court or the Legislature, decides, whether a particular privilege claimed by a House exists or not?
When a privilege is held to exist, Is House the final judge of how, in practice that privilege has to be exercised
Can the Courts go into the question of validity or propriety of committal by a House for its contempt or breach of privilege?
Can the Courts interfere with the working of the Committee of privileges?

Case of West Bengal: The Speaker of the Assembly granted temporary permission to two communist

M.L.As to remain on the Assembly premises in order to avoid arrest under the Preventive Detention

Act. The court observed that general immunity cannot be conferred upon Members from arrest.The only immunity permitted by established practice in Britain is that the arrest cannot be effected within the precincts of the chamber when the House is actually sitting.

In practice the legislature claims an absolute power to commit a person for its contempts and a general warrant, if issued by it, has a nature of conclusive and free from judicial scrutiny. The question however raised whether such a claim can be accepted in India which has written

Constitution with fundament rights and doctrine of judicial review of legislative action as basic structure of the constitution.

The Judiciary admits the fact that the Parliament is immune from its jurisdiction with regard to its internal matters, which itself is one of the necessary privilege of the Parliament. Though the Court has accepted this position in theory, in practice on various occasions judiciary has extended its adjudicators powers on the privileges of Parliament and State Legislatures.

The Courts being the custodian of the Constitution and the fundamental rights of the citizens, were forced to decide the issues though, they were related to powers, privileges and immunities of the Parliament and concerned to internal proceedings of the Parliament.

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