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Parliamentary privilege

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Curator: Medha Vikram, Student, B.A., LL.B. (Hons.),National Law University, Delhi

Contributor: Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi

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Primary Sources

Legislative Material

1. Article 105 of the Constitution of India, 1950 (as amended in 1979)
This provides the Constitutional basis for Parliamentary Privilege in India. The original Article equated the privileges of the Indian Parliament to those of the House of Commons of the Parliament of the United Kingdom as on 26.01.1950. This was subsequently amended to that of the Indian Parliament as it stood immediately before 20.06.1979.

2. Article 194 of the Constitution of India, 1950 (as amended in 1979)
Worded in similar terms to Article 105 (and also amended similarly), this is the Constitutional basis for privilege in the State Legislatures.

3. Constituent Assembly Debates, Vol. 8 (19.05.1949)

4. Constituent Assembly Debates, Vol. 8 (03.06.1949)

5. Constituent Assembly Debates, Vol. 8 (16.10.1949)
These are relevant portions of the Indian Constituent Assembly Debates that deal with the discussion around the privileges of Parliament (then proposed to be codified in the Draft Article 162).

Relevant Case Law

6. Robert W. Gauthier v. Canada, CCPR/C/65/D/633/1995 (Human Rights Committee) [Open Access]
This case was brought to the Human Rights Committee by the author, a Canadian citizen, who alleged that the Speaker of the Canadian House of Commons, by denying him membership to the Press Gallery in exercise of parliamentary privilege, had violated his right under Article 19 of the ICCPR. The Committee observed that in the absence of any recourse to the author against this decision, either to the courts or to Parliament, the restriction imposed on the author’s rights failed to satisfy the tests of necessity and proportionality under Article 19(3) of the ICCPR.

7. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P. AIR 1954 SC 636 (Supreme Court of India) [Open Access]
In this case, the Supreme Court held that the arrest of a citizen under the speaker’s order for breach of privilege of Uttar Pradesh assembly without producing him before a magistrate as required by Article 22(2) of the Constitution was a violation of the fundamental right. This is illustrative of the proposition that that privilege under Article 105 or 19 cannot be higher than a fundamental right under Article 19 or 21.

8. MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395 (Supreme Court of India) [Open Access]
The petitioner, the Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker. Thus, the case involved a clash between Article 19(1)(a) and Article 194 of the Constitution of India. The court held that the principle of harmonious construction has to be applied for reconciling the differences between fundamental rights and legislative privileges and Article 194 being a special provision must take precedence over fundamental right mentioned in Article 19 which was a general provision”.

9. In re, Keshav Singh’s Case (Special Reference No. 1 of 1964 under Article 143) AIR 1965 SC 745 (Supreme Court of India) [Open Access]
This case is illustrative of the tussle of power that can occur between the Parliament and the Legislature. In this case Keshav Singh was committed to prison for committing contempt of the Uttar Pradesh assembly. Thereafter a petition was filed in the high court by an advocate alleging that the detention of Keshav Singh was illegal. Two judges of the court subsequently released Keshav Singh on bail. The Uttar Pradesh assembly then took the unprecedented step of issuing summons to the judges and the advocate who argued the case for committing contempt of the house and also ordered that Keshav Singh be immediately taken into custody. The two judges and the advocate then filed petitions before a full bench of Allahabad High Court, which ordered by notice restraining the speaker of assembly from issuing a warrant against them. When the incidents reached this stage, the president made a reference under Article 143 to the Supreme Court. The apex court upheld the verdict of the high court and held that the “judge who entertains a petition challenging any order of the legislature imposing any penalty on the petitioner for its contempt…does not commit contempt of the said legislature and the legislature is not competent to initiate proceedings against that judge”.

Theory

Indian material

10. Rajya Sabha Secretariat, Chapter on Parliamentary Privileges, [Open Access]
11. Lok Sabha Secretariat, Practice and Procedure of Parliament, Chapter XI (2009) [Open Access]
12. Lok Sabha Secretariat, Practice and Procedure of Parliament, Chapter XLIV (2009) [Open Access]

Published by the two houses of the Parliament of India, these three chapters present a detailed basic reading on parliamentary privileges. They examine the nature of parliamentary privileges and the effect that these privileges have on the freedoms enshrined in the Constitution. It particularly addresses the issue of conflict between the freedom of speech and the prohibition on reporting of parliamentary proceedings.

13. Justice P.K. Balasubramanyan, Parliamentary Privilege: Complementary Role of the Institutions, (2006) 2 SCC (Jour) 1 [Paid Database]
This article discusses the issue of parliamentary privileges in detail. Particularly, it deals with the conflict of privileges with the freedom of expression and the power struggle between the judiciary and the legislature relating to the codification of law relating to privileges. The article concludes that the solution to avoid conflicts lies in understanding the relationship among the institutions.

14. Dr K. Madhusudhana Rao, Codification of Parliamentary Privileges in India: Some Suggestions, (2001) 7 SCC (Jour) 21 [Paid Database]
This article discusses the various privileges afforded to members of Parliament, including the right to control publications and immunity from civil and criminal proceedings. It provides a comparison with the law relating to privileges in the UK. It also analyses the provisions of the Constitution that relate to privileges and provides certain suggestions for codifying the law relating to Parliamentary privileges in India.

15. Ajit Sharma, The Privileged Legislature, 38(48) Economic and Political Weekly, Vol 5018 (November 29, 2003) [Paid Database]
The author adopts the view that the concept of parliamentary privileges, originating in medieval times has not been able to transform itself. There is cogent evidence to show that privileges have been misused in the past in various countries. The author concludes that it is time now that parliament, which makes laws for regulating future conduct of men and women, make rules regarding its own conduct.

International and comparative material

16. General Comment No. 34, Human Rights Committee (102nd Session, 2011) [Open Access]
This is a Comment on Article 19 of the ICCPR, where the Human Rights Committee examines the extent of the freedom under the Article, as well as the restrictions that may lawfully be imposed by the State, and observes, inter alia, that “Restrictions must be provided by law. Law may include laws of parliamentary privilege and laws of contempt of court.”

17. UK Joint Committee Report on Parliamentary Privilege, 1999 [Open Access]
This Report states that the UK Parliament should clarify the scope of parliamentary privileges with respect to free speech, specifically the prohibition of the examination of parliamentary proceedings in any court. Further, it states that there are three exceptions to this general principle which should be provided for in statute. First, nothing should prevent proceedings in Parliament being examined in any court proceedings so far as they relate to the interpretation of an Act of Parliament or subordinate legislation. Second, nothing should preclude the use of parliamentary proceedings in court for the purpose of judicial review of governmental decisions or in other court proceedings in which a governmental decision is material. Third, courts should be able to examine parliamentary proceedings when there is no suggestion that anything forming part of those proceedings was inspired by improper motives or was untrue or misleading and there is no question of legal liability.

18. UK Joint Committee Report on Parliamentary Privileges, 2013-14 [Open Access]
This Report discusses the major changes relating to Parliamentary Privileges in the UK since 1999. In the 2002 case of A v. the United Kingdom the European Court of Human Rights held that the absolute freedom of speech in Parliament was proportionate, and did not violate the European Convention on Human Rights—although the Court also asserted its jurisdiction over national parliaments’ privileges. There have been domestic cases in which lower courts have examined proceedings in Parliament, for example to establish the proportionality of legislation for human rights purposes, but there have also been judgments which suggest the courts will be cautious in using documents such as committee reports in evidence. In certain cases originating outside the United Kingdom evidence derived from parliamentary proceedings has been used to establish motivation for acts outside Parliament, and in one case the Judicial Committee of the Privy Council held that a Member who said that he “did not resile” from what he had said in Parliament had effectively repeated a defamatory statement.

19. Warren J. Newman, Parliamentary Privilege, the Canadian Constitution and the Courts, 39 Ottawa Law Review 573 (2007–2008) [Paid Database]
This paper explores the role and place of Parliamentary privileges in the Canadian constitutional system, notably with respect to their relationship to other parts of the Constitution, and attempts to clarify the status of parliamentary privilege under the Constitution of Canada, having regard to the provisions of the Constitution and decisions of the Canadian Supreme Court.

20. Kelly M. McGuire, Limiting the Legislative Privilege: Analyzing the Scope of the Speech or Debate Clause, 69 Washington & Lee Law Review 2125 (2012) [Paid Database]
This article explains the current interpretation of the U.S. version of parliamentary privilege – the Speech or Debate Clause in the U.S. Constitution – as set forth by Supreme Court decisions. It analyzes the Speech or Debate Clause using textual, historical, and ethical constitutional interpretive methods and proposes a new test for applying the Speech or Debate Clause that will narrow the scope of the privilege.

21. Of the Nature and Extent of Parliamentary Judicature, 6(1) The Law Magazine 1 (1831) [Paid Database]
This article describes the origin and nature of Parliamentary privilege in the United Kingdom.

22. Bernard Wright, Patterns of Change, Parliamentary Privilege (December 2007) [Open Access]
This article analyses the privilege provisions applying to Australia’s national parliament and compares it to international standards. Particularly, the article also analyses whether the curtailment of traditional provisions has weakened the Parliament’s position.

Basic References

23. PRS India Blog, Parliamentary Privilege: FAQs, September 1, 2011. [Open Access]
This blog provides answers to certain basic questions pertaining to parliamentary privileges in India.

24. Rahul Sharma, Parliamentary Privileges, MyLaw.net [Open Access]
This article is a very basic primer on the nature and history of Parliamentary Privileges in India, in the context of free speech.

Commentary

25. M.V. Pylee, Free Speech and Parliamentary Privileges in India 35(1) Pacific Affairs 11 (Spring, 1962) [Paid Database]
This article is a detailed commentary on the tension between the freedom of speech and Parliamentary privilege in post-Constitutional India. Although slightly outdated in light of subsequent developments, it provides an interesting perspective on Parliamentary privileges as they stood prior to the 44th amendment of the Constitution in 1979.

26. Shivprasad Swaminathan, The Conflict between Freedom of Press and Parliamentary privileges: An unfamiliar twist in a familiar tale, 22(1) National Law School of India Review 123 (2010) [Open Access]
This article provides a novel interpretation of the two Constitutional issues of Parliamentary privileges and the freedom of expression. The author argues that the combined effect of the 42nd and 44th amendment to the Constitution was to lower the status of parliamentary privileges from being part of the original Constitution to being a part of an amendment to the Constitution. This would make these privileges subject to the Basic Structure doctrine and hence by implication, subject to Article 19(1)(a).

27. Nirmalendu Bikash Rakshit, Parliamentary Privileges and Fundamental Rights, 39(13) Economic and Political Weekly 1379 (March 27, 2004) [Paid Database]
This article discusses incidents where state legislators have demanded action against the press, which have once again highlighted the conflict that exists between fundamental rights guaranteed by the Constitution and privileges extended to elected representatives. The author concludes that while parliamentary privileges remain to be codified, successive court rulings have also emphasised the precedence that fundamental rights occupy over such rights.

28. Arvind Kumar, Essay on Indian Parliamentary Privileges and Immunities, Preserve Articles
This article provides a general overview of the privileges extended to Members of Parliament in India. It also discusses cases pertaining to privileges where the Supreme Court has opined that the legislature should pass a law clearly codifying its privileges. Then the citizen will know how far these parliamentary privileges restrict his fundamental right to freedom of speech and expression.

29. D Shanmuganathan, Parliamentary Privilege in India, Amicus Curiae, Issue 30, September 2000.
This article discusses the laws pertaining to parliamentary privilege in India. It addresses the power struggle that exists between the judiciary and the legislature over the issue of parliamentary privileges. It focuses on the UK Joint Committee Report, 1999 and advise that the Indian parliament to codify its privileges in light of the same.

Bibliography

30. M.N. Kaul and S.L. Shakdher, Practice and Procedure of Parliament, 6th edn. (P.D.T. Achary ed.), pp. 219–319 (Lok Sabha Secretariat, 2009).
This book is an attempt to compile all aspects of Parliamentary practise and procedure in a concise and lucid manner. It includes a detailed commentary on the Constitutional provisions as well as Parliamentary Rules of Procedure and Conduct of Business, with reference to case law. (Introduction)

31. D.D. Basu, Commentary on the Constitution of India, 8th edn., pp. 5033-5183 (LexisNexis Butterworths Wadhwa, 2008).
This book is a seminal treatise on the Indian Constitution, with reference to pre-existing British procedure, amendments in India and relevant case law.

32. Subhash C Kashyap, Anti Defection Laws and Parliamentary Privileges in India, 3rd edition 2011, Universal Law Publishing Company.

33. Griffith, J.A.G. and Ryle, M., Parliament: Functions, Practice and Procedures, 2nd ed., edited by R. Blackburn and A. Kennon with Sir M. Wheeler-Booth, London: Sweet & Maxwell, 2003.

34. D.C. Jain, Parliamentary Privileges under the Indian Constitution, 1975 Sterling Publishers

35. A.P. Chatterjee, Parliamentary Privileges in India, 1971, New Age International Publishers

36. P. S. Pachauri & Laxmi Mall Singhvi, The Law of Parliamentary Privileges in UK and in India (Oceana Publications, 1971).

37. Harihara Dāsa & Sabita Kumari Rath, Parliamentary Privileges in India: Contours and Dimensions, Ashish Publishing House, 1985.

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