Parliamentary privileges enable the members to discharge their functions without fear and are necessary for democratic functioning. Articles 105 and 194 are identical containing the privileges of Parliament and State legislatures respectively.
Article 105 (1) provides that there shall be freedom of speech in Parliament. This freedom is however subject to rules regulation the procedure of the House. For instance under Article 121/212 the conduct of a judge of the Supreme Court or High Courts cannot be discussed in Parliament or State Legislatures. Rules may forbid the use of un-parliamentary language
Article 105(2) provides that no Member of Parliament shall be liable to any proceedings in a court of law in respect of anything said or any vote given by him in Parliament or any committee thereof. Thus Article 105(2) provides absolute immunity to MP’s from any proceedings in a court of law
Article 105(3) does not grant any specific privilege. It give to Parliament and State Legislatures all the privileges enjoyed by British House of Commons as on 26 January 1950.
Article 105(3)/194(3) contain a clear mandate to the legislature to codify the privileges.
The Parliamentary privileges under clause 3 are not codified.
The key question is: does the power of judicial review extend to parliamentary privileges? Would fundamental rights override the privileges and privileges would be subservient to fundamental rights?
Article 122(212) of the Constitution reads
- The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure
- No officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
In M S M Sharma v S K Sinha (AIR 1959) SC 393( Searchlight Case)
The Supreme Court held that Parliamentary privileges shall not be subject to Article 19(1) (a) of the Constitution. In this case the editor of a newsletter Searchlight had published a report of the proceedings of Bihar Legislative Assembly which had been expunged by the Speaker. The editor was held guilty of contempt of the House. He sought injunction from the court against the contempt proceedings on the ground of his fundamental right to freedom of speech under Article 19 (1) (a) of the Constitution.
He argued that the intent of the Constituent Assembly was that the privileges should be codified eventually. Once codified they would be “law” under Article 13 (2) and therefore liable to be struck down if they violated any of the fundamental rights. Such a codified law would be subject to Article 19(1) (a).
He further argued that his right under Article 21 will be violated if he was produced before the Privileges Committee of the House which could order his imprisonment.
The State Legislature claimed its privilege to prohibit publication of proceedings as at the commencement of the Constitution the British House of Commons enjoyed the privilege to prohibit publication of debates and proceedings of the House. The Court accepted the claim of Bihar Legislature to take action for the breach of this privilege by MSM Sharma
On the question of the argument based on Article 19(1) (a) the Court held that freedom of speech in legislature contained in Article 194(1) (105(1) being specific as against the general freedom of speech under Article 19(1)(a), the general restriction that applied by Article 19(2) would not apply to freedom of speech under Article 194(1). The Supreme Court rejected the contention based upon Article 19(1) (a) and held that privileges under Article 194(3) would not be subject to Article 19(1) (a) and in case of conflict between Article 19(1)(a) and 194(3) the latter will prevail.
As regards Article 194(2) the Court held that it was not the intention of framers of the Constitution to make immunity for speeches given or vote given in legislature subject to fundamental rights guaranteed under constitution.
As regards the argument based on Article 21 the Court held that in case the Editor was produced before the Committee of Privileges in the Bihar Legislature the rules framed by the Assembly under Article 208 would constitute a procedure established by law and there would be no violation of Article 21
It is important to bear in mind that the Court in this case made no comment on whether Article 21 would override privileges.
P V Narsimha Rao v State ( 1998) 4 SCC 626
Bribe was given to some MP’s to vote against motion of no-confidence against Prime Minister P V Narsimha Rao. He was charged under IPC and Prevention of Corruption Act for entering into a conspiracy and bribing some MP’s to induce them to vote against motion of no-confidence at a time when he was the PM.
The Court’s majority held that under Article 105(2) the activity of bribe taking by an MP is in respect of anything said or any vote given by him in Parliament and anything would mean everything including accepting a bribe and so Rao could not be prosecuted in a court of law. In case after accepting bribe an MP did not actively cast his vote, he may be prosecuted because then there would be no nexus between vote and bribe.
This decision has been widely criticized for promoting corruption in political life.
In 1964 Keshava Singh a private citizen was found guilty of contempt of UP Assembly as he had committed a breach of privilege of an M L A N N Pandey by printing and publishing certain contemptuous pamphlets against Pandey. Keshava Singh was summoned to Legislative Assembly. Then Keshava Singh wrote a disrespectful letter to the Speaker and acted in an unruly manner when being reprimanded in the LA. The Speaker issued a warrant of arrest for the detention of Keshava Singh for 7 days for contempt of the House.
.Keshava Singh moved to the High Court for a writ of Habeas Corpus. A Division Bench of High Court in Lucknow ordered his release on an interim bail pending the decision on Habeas Corpus petition.
UP Legislature issued a contempt notice against the 2 judges for having entertained the writ petition. The House passed a Resolution that the lawyers and the 2 judges be brought before the House in custody.
The Judges and advocates filed a writ of mandamus before Allahabad High Court A Full Bench of the High Court consisting 28 Judges (except the 2 judges) made directions restraining the Speaker from issuing warrants and restraining the Marshal of the House from executing the warrant if it had already been issued.
Taking note of a grave constitutional crisis the President of India sought advisory opinion of the Supreme Court under Article 143.
A bench of 7 judges delivered their opinion led by Justice Gajendragadkar.
Relying on Searchlight case Chief Justice Gajendragadkar placed a radically different interpretation of parliamentary privileges, making them generally subject to fundamental rights and secured to the judiciary power to determine the legality or constitutionality of legislative privileges on case to case basis.
Broadly speaking the Court laid down the following propositions.
(a) The correct interpretation of Searchlight case would be that while Article 19(1) (a) would not override privileges. Article 21 may override privileges as in Searchlight case the Constitution bench did examine argument based on Article 21 on its merits. The Court further held that the general proposition that privileged would not be subservient to fundamental rights was incorrect.
(b) Whether a House possesses a particular privilege under 105(3) or 194(3) is for the court to decide on case to case basis. The Searchlight case did not preclude the application of all fundamental rights, it precluded the application of Article 19(1) (a) to privileges
(c ) In the matter of privilege the action of Parliament or any of its members is subject to judicial review on grounds of irrationality, illegality or unconstitutionality
(d) The House of Commons was a Superior Court and general warrants issued by it could not be reviewed by a court but Indian Parliament or legislatures are not a Court of Law. In India the courts can examine the legality of general warrant issued by a Legislature. High Court has power to issue a writ against any “authority” under Article 226 including legislature
(e) Under Article 211 the conduct of a judge can never be subject matter of any action taken by the House in exercise of powers and privileges. Therefore the action of UP legislature against the judges was improper.
(f) Article 212 is only concerned with regulation of procedure inside the House and is not a limitation on the power of the Court. This Article provides for ouster of court’s jurisdiction in respect of regulation of procedure inside the House.
(g) Article 194(3) refers to future laws defining powers and privileges of the legislature and such laws will always be subject to fundamental rights under Article 13(2) and the Courts would be competent to examine the validity of codified privileges.
Keshava Singh marked the beginning in the subservience of privileges to fundamental rights and the advisory opinion felt itself bound by the ruling of Searchlight case.\
The reasoning of Keshava Singh was adopted by a 5 judge bench in Raja Ram Pal
Raja Ram Pal v Speaker Lok Sabha (2007) 3 SCC 184
Aaj Tak a news channel conducted a sting operation “operation Duryodhan” in which 11 MP’s (10 from Lok Sabha and 1 from Rajya Sabha were caught on camera accepting bribes to ask certain questions in Parliament and thereby misusing their powers for illegal gratification and money gains. Video was telecast repeatedly leading to an uproar. The Committee of Privileges of Lok Sabha and Ethics Committee of Rajya Sabha heard the matter and found all the MP’s guilty and recommended their immediate disqualification. The recommendations were accepted and all the 11 MP’s were expelled.
The expelled MP’s approached the Supreme Court for relief and challenged their expulsion as unconstitutional. Sabharwal CJ, K G Balakrishnan, DK Jain and CK Thakkar JJ held that their expulsion was constitutional but Justice Ravindran gave a dissenting opinion holding that their expulsion was unconstitutional
Contentions of expelled MP’s
- Expulsion is a punitive measure. The House of Commons had power to punish for its contempt in its capacity as High Court of Parliament and since this status was not accorded to Indian Parliament the power to expel for contempt could not be claimed by Parliament under Article 105 (3).
- Article 105(3) could not be the basis of expulsion as it would come in conflict with other Articles 101 or 102 which deal with disqualification of MP’s.
- There was a denial of principles of natural justice in inquiry proceedings of Parliament which cannot be exempted from judicial review
- Supreme Court is the final arbiter on constitutional issues and can determine the legality of the action of Parliament. Parliament cannot determine the legality of its own actions
Speaker of Lok Sabha refused to appear before the Court viewing the matter as a political question and therefore non-justiciable and Union of India took the stand that action of expulsion was within the inherent privilege of Parliament over which the courts had no jurisdiction.
The Supreme Court cited the supremacy of the Constitution and held:
- The contention of the petitioners that Parliament did not inherit the power of expulsion rejected as in UP Assembly case (1965) where the Court had held that British Parliament was sovereign but in India sovereignty was distributed in a federal structure. Hence British Constitution could not be compared with Indian Constitution. Parliament in India possesses the power to expel its members.
- Provisions dealing with Disqualification did not clash with a power to expel under Article 105(3). Articles 101(dealing with vacancies) and 102 (disqualification of members) served a different purpose. While disqualification operates to prevent a candidate from re-election, expulsion occurs after the election of the member and there is no bar on re-election.
- Power of contempt is remedial and not punitive. Parliament cannot be denied power to expel a member for contempt of the House under Article 105(3). This power was available to House of Commons as on 26.01.1950
- Parliament is a co-ordinate organ and Supreme Court has power of judicial review under Article 13(2) which would extend to privileges on case to case basis.
- The Court gave wide interpretation to Article 122 (212) and held that while Article 122 precluded an inquiry into the proceedings of Parliament on ground of PROCEDURAL IRREGULARITY, this provision did not oust judicial review if the proceedings of Parliament were tainted on account of SUBSTANTIVE OR GROSS ILLEGALITY OR UNCONSTITUTIONALITY. An illegal or unconstitutional procedure could be a subject of judicial review. Article 122 was intended to prohibit cases of internal parliamentary proceedings on the ground of mere procedural irregularity.
- The Court’s majority held that privileges of parliament may be subject to fundamental rights on case to case basis. For this holding the Court drew support from Keshava Singh case.
- The Court rejected the doctrine of Exclusive Cognisance. The English doctrine of Exclusive Cognisance stipulates that Parliament has the exclusive power to deal with breach of privileges and the court have no jurisdiction to entertain a matter arising out of breach of privileges. This doctrine has been displaced in India by Articles 122/212.
The Supreme Court’s judgment in Raja Ram Pal prohibits judicial interference with respect to internal parliamentary proceedings on the ground of procedural irregularity. The Court gave a wide interpretation of Article 122 by holding that this provision did not preclude judicial review if the procedure was illegal or unconstitutional.
The strongest implication of Raja Ram Pal is that the court will now be able to exercise scrutiny over non-legislative proceedings, not just those proceedings dealing with parliamentary expulsions. Any proceeding which is tainted with gross illegality or substantive illegality will be subject to judicial review. Raja Ram Pal opens floodgates to challenge parliamentary proceedings. This judgment makes parliamentary privileges subservient to fundamental rights on case to case basis and heavily relies on Keshava Singh opinion for its conclusion.
You can grab notes on other provisions of the Constitution and other law subjects from here.