PARLIAMENTARY PRIVILEGES UNDER INDIAN

CONSTITUTION: A CRITIQUE

A PRECIS SUBMITTED TO
BHARATI VIDYAPEETH DEEMED UNIVERSITY, PUNE
FOR AWARD OF DEGREE OF
DOCTOR OF PHILOSOPHY IN LAW
UNDER THE FACULTY OF LAW

SUBMITTED BY
MR. GAURAV DESWAL

UNDER THE GUIDANCE OF

DR. JYOTI DHARM

RESEARCH CENTRE
NEW LAW COLLEGE
BHARATI VIDYAPEETH DEEMED UNIVERSITY
PUNE-411 038

NOVEMBER 2016
0
 PARLIAMENTARY PRIVILEGES UNDER
INDIAN CONSTITUTION: A CRITIQUE

PRECIS

SUMMATION OF CHAPTER I

Introduction

Privilege is that which sets honorary members apart from other citizens giving them
rights which the public do not possess …. In my view, parliamentary privilege does
not go much beyond the right of free speech in the House of Commons and the right of
a member to discharge his duties in the House as a member of the House of
Commons.
- Speaker Lucien Lamoureux1

1. Parliamentary privileges and its importance

Seven centuries ago, an anonymous commentator observed that the law and custom of
parliament2 was “meet to be inquired into by all, but ignored by many, and known by
few”.3 This maxim applies to law of parliamentary privilege which is a difficult and
emotionally-charged subject.

Parliaments perform important functions as democratic institutions, which broadly fit

into three main areas; representation, legislation and overseeing of executive
government. To achieve these objectives and keep the executive accountable and
transparent, parliaments possess certain privileges, powers and immunities.

1
Debates, April 29, 1971, at 5338.
2
In this research thesis the term ‘parliament’ is used to describe parliament(s) generally while
‘Parliament’ either refers to a specific jurisdiction or is used with the phrase ‘House(s) of
Parliament’.
3
Lex et consuetudo Parliamenti …… ab omnibus quaerenda, a multis ignorata, a paucis cognita.
FLETA, BK II Ch. 2 (1290).
1
The term ‘parliamentary privilege’ refers to the powers, privileges and immunities
enjoyed by Houses of Parliament and their members in the performance of their
duties. “These privileges are an exception to ordinary law and are intended to allow
parliamentarians to perform their duties without fear of intimidation or punishment,
and without impediment.”4 In spite of this, parliamentary privilege is the privilege of
the Houses of Parliament “as a whole and not simply of the individual member”.5

Parliamentary privilege is an essential part of our parliamentary democracy. It ensures

that members of parliament are able to speak freely in debates, and protects
parliament’s internal affairs from interference from the courts.6

The concept of parliamentary privilege in India in its modern form is one of scion. “It
is an importation from England, a plant of an alien stock from which it continues to
receive its very life and substance.”7 “It has sent its roots deep into the soil of India,
and has to-day become a living organism.”8

All strong democracies have at their core the recognition that “parliamentarians must
be free to speak their mind in debates-and member of parliaments to represent their
constituents’ views–without fear or favour”. 9 “When the connotation of the word
‘privilege’ is unfortunate in its suggestion of special treatment for members of
parliament, it serves as a reminder that even the most durable of constitutional tenets
should periodically be reviewed. It is required to take a comprehensive look at its

4
Rachel Macreadie & Greg Gardiner, An Introduction to Parliamentary Privilege, No. 2
Parliamentary Library’s Research Service, Department of Parliamentary Services, Parliament of
Victoria 9 (2010) available at
http://www.parliament.vic.gov.au/publications/research-papers/818-an-introduction-to-
parliamentary-privilege/download.
5
United Kingdom, House of Lords, Companion to the Standing Orders and Guide to the
Proceedings of the House of Lords, laid before the House by the Clerk of the Parliaments 199
(2007).
6
Parliamentary Privilege, available at
www.official-documents.gov.uk/document/cm83/8318/8318.pdf.
7
PRITITOSH ROY, PARLIAMENTARY PRIVILEGE IN INDIA 1 (Oxford University Press
1991).
8
Id.
9
Supra note 6.
2
scope and operation to ensure that parliamentary privilege continues to operate to
protect the effective functioning of our democracy.”10

2. Need for the present research study

The term ‘parliamentary privilege’ is used in constitutional writings to denote both-

rights as well as immunities. The pioneer analyst in law of parliamentary privileges
Sir Thomas Erskine May has defined the expression ‘parliamentary privileges’ as
follows: “Parliamentary privilege is the sum of peculiar rights enjoyed by each House
collectively as a constituent part of the High Court of Parliament, and by members of
each House individually, without which they could not discharge their functions, and
which exceed those possessed by other bodies or individuals”.11

These privileges and immunities by protecting its authority and self-esteem empower
the legislature to execute its affairs effectually, valiantly and independently without
any external interventions. “Power to punish for breach of privilege or contempt”,
“right to regulate its own composition”, “right to prohibit the publication of its
proceedings”, “freedom of speech and debate in the House” and “freedom from arrest
in civil cases” etc. are some important privileges or immunities generally granted to a
parliament in a parliamentary form of democratic polity.

As the concept of parliamentary privilege in India is an “importation from England”12

it has the same characteristic nature “not being codified”13 but “being in crystallized”

10
Id.
11
THOMAS ERSKINE MAY, TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND
USAGE OF PARLIAMENT 75 (U.K.: LexisNexis 23rd ed. 2004).
12
The issue of parliamentary privilege dates to the 17th century in Britain, where parliament had a
number of conflicts with the monarch. In particular, the famous Bill of Rights that came into force
in England in 1689 laid down the principles of freedom of speech for parliamentarians.
Specifically, Article 9 of the Bill of Rights states that “the freedom of speech and debates or
proceedings in Parliament ought not to be impeached or questioned in any court or place out of
Parliament”.
13
The speaker of the British House of Commons announces at the initiation of every parliament
privileges and immunities to be enjoyed by the parliamentarians as: “It is now my duty in the name
and on behalf of the Commons of the United Kingdom to lay claim by humble petition to Her
Majesty to all their ancient and undoubted rights and privileges, especially to freedom of speech in
debate, to freedom from arrest and to free access to Her Majesty whenever occasion shall require
and the most favourable construction shall be put upon all their proceedings.” SUSAN CHILD,
POLITICO GUIDE TO PARLIAMENT 343 (New Delhi: Lawman India Pvt. Ltd. 1999).
3
form by modes of “resolutions, standing orders, conventions and practices of the
Houses, and they are part of the Law and Custom of Parliament (Lex et consuetudo
Parliamenti)”.14

The manner or way by which the privilege or the immunity is being exercised is the
arena of the Houses of Parliament only and the judiciary is confined to the border of
deciding “whether a particular privilege exists or not”. The decisions regarding the
warrants issued or resolutions passed in its contempt proceedings are in the exclusive
and conclusive authority of the Parliament which cannot be challenged in any court of
law. Based on Article l22(l) of the Constitution of India, 1950 (hereinafter the
Constitution), it is clear that an exercise of legislative privilege cannot be struck down
on the ground of any alleged irregularity in procedure. The courts will interfere only
where it is demonstrably clear that the exercise of legislative privilege is vitiated by
fundamental illegality or unconstitutionality.

In India, Union Parliament and State Legislatures cannot claim to have own inherent
powers or privileges independent of the Constitution itself. In understanding the
factual and accurate extent of legislative privileges and immunities in India, the
various statutes like “the Government of India Act, 1919, the Government of India
Act, 1935 and the Indian Independence Act, 1947 and the drafting history of the
Constitution of independent India” are very resourceful but ultimately, “the
Constitution alone is the source of all powers, privileges and immunities granted to
the Union Parliament and the State Legislatures”.

Article 105 of the Constitution stipulates the powers, privileges and immunities of the
Union Parliament and members of the Union Parliament. 15 Article 194 of the

14
SHASHIKANT HAJARE, THE LAW OF PARLIAMENTARY PRIVILEGES IN INDIA:
PROBLEMS AND PROSPECTS 1 (Mumbai: Himalaya Publishing House Pvt. Ltd. 2012).
15
“105. Powers, privileges, etc., of the Houses of Parliament and of the members and
committees thereof.-
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any Court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no person
shall be so liable in respect of the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.
4
Constitution provides for powers, privileges and immunities of State Legislatures and
members of Legislative Assemblies in terms identical to Article 105.16 Clause 1 of
Articles 105 and 194 confers to members of Parliament and members of Legislative
Assemblies the ‘freedom of speech’ in the respective Houses which has been granted
to them independently of the ‘freedom of speech’ enjoyed by all citizens of India
under Article 19(1)(a) of the Constitution.17 18 However, the freedom of speech under
Articles 105 and 194 is not absolute but to the subjection of “other provisions of the
Constitution” and “the rules and standing orders regulating the procedure of the
House”.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of
the members and the committees of each House, shall be such as may from time to time be
defined by Parliament by law, and, until so defined, 1[shall be those of that House and of its
members and committees immediately before the coming into force of section 15 of the
Constitution (Forty-fourth Amendment) Act, 1978].
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of Parliament or any committee thereof as they apply in relation to members of
Parliament.
1
. Substituted by the Constitution (Forty-fourth Amendment) Act, 1978, § 15, for certain
words (w.e.f. 20-6-1979).”
16
“194. Powers, privileges, etc., of the House of Legislatures and of the members and
committees thereof.-
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any Court in
respect of anything said or any vote given by him in the Legislature or any committee thereof,
and no person shall be so liable in respect of the publication by or under the authority of either
House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of such Legislature of a
State, and of the members and the committees of a House of such Legislature, shall be such as
may from time to time be defined by the Legislature by law, and, until so defined, 65[shall be
those of that House and of its members and committees immediately before the coming into
force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978].
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of the Legislature of a State or any committee thereof as they apply in relation to
members of that Legislature.
65
. Substituted by the Constitution (Forty-fourth Amendment) Act, 1978, § 26, for certain
words (w.e.f. 20-6-1979).”
17
“19. Protection of certain rights regarding freedom of speech, etc.-
(1) All citizens shall have the right-
(a) to freedom of speech and expression;
……………..”
18
In President’s Reference No. 1 of 1965, A.I.R. 1965 S.C. 1186 (Keshav Singh’s case), the Supreme
Court of India held that “the freedom of speech would only be subject to the supervisory powers of
the presiding officer of the House under the internal rules regulating the procedure and conduct of
business”.
5
Clause 2 of Articles 105 and 194 of the Constitution postulates that members of
Parliament and members of Legislative Assemblies have “the immunity from the
liability to any proceedings in any court in respect of anything said or vote given by
them in the House”. Clause 2 further specifies that “no person is so liable in respect of
the publication by or under the authority of the House, of any report, paper, votes or
proceedings”.

In P.V. Narsimha Rao v. State (CBI/SPE),19 the Supreme Court of India judged that
“by virtue of Article 105(2) of the Constitution, a Member of Parliament can claim
immunity from prosecution on a specific charge of bribery in a criminal court if the
acceptance of the bribe constitutes a motive behind the vote given by him in the
Parliament”. Balsubramaniyan, J. commenting upon the above said decision of the
court and the “nature and scope of the privileges enjoyed by the legislative bodies in
India” opined that: “so it is evident that subject to very minor limitations, the
privileges under Articles 105(1) and (2) with regard to speech in the House are
complete, conclusive and outside the scope of scrutiny or enquiry by other organs of
the state”.20

The other parliamentary privileges expressly mentioned in the Constitution are: the
power of each House of Parliament under Article 118 to make rules to regulate its
own procedure and the conduct of its business; 21 the immunity under Article 122(1)
from any inquiry by the courts into the validity of the proceedings of Parliament on
the ground of irregularity of procedure;22 and the immunity under Article l22(2) from

19
P.V. Narsimha Rao v. State (CBI/SPE), A.I.R. 1998 S.C. 2120.
20
P.K. Balasubramaniyan, Parliamentary Privileges: Complementary Role of the Institutions, 2
Supreme Court Cases (Journal) (2006).
21
“118. Rules of procedure.-
(1) Each House of Parliament may make rules for regulating, subject to the provisions of this
Constitution, its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure and standing orders in force
immediately before the commencement of this Constitution with respect to the Legislature of
the Dominion of India shall have effect in relation to Parliament subject to such modifications
and adaptations as may be made therein by the People, as the case may be.
(3) The President, after consultation with the Chairman of the Council of States and the Speaker
of the House of the People, may make rules as to the procedure with respect to joint sittings
of, and communications between the two Houses.
(4) At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence
such person as may be determined by rules of procedure made under clause (3), shall preside.”
22
“122. Courts not to inquire into proceedings of Parliament.-
6
the jurisdiction of the courts of officers and members in whom powers are vested for
regulating procedure or conduct of business or for maintaining order.23

‘Breach of privilege’ is an endeavor to interfere in the freedom of speech granted to

the parliamentarians. In case of breach of privilege, Parliament has the right to punish
those guilty in such case.

It is important to point out here that the Constitution does not lay down the exact
privileges that MPs and MLAs are entitled to, except for their freedom of speech.

As per Articles 105(3) and 194(3) which had been empowered at the commencement
of the Constitution in 1950, the Parliament and State Legislatures in India had been
authorized to determine their “other privileges” and “until they were so defined by
law, the privileges enjoyed by the British House of Commons and its members at the
time of commencement of the Indian Constitution would have to be applied in India”.

By the 44th Constitutional Amendment Act in 1978 the words ‘House of Commons’
in Articles 105(3) and 194(3) was deleted and the structure of the amended Articles
105(3) and 194(3) was determined as “until the privileges are codified, the powers,
privileges and immunities of the Parliament and State Legislatures shall be those
enjoyed by them before the coming into force of section 15 of the Constitution (Forty-
fourth Amendment) Act, 1978”. The Constitution defers to the Parliament itself under
Article 105(3): “In other respects, the powers privileges and immunities of each
House of Parliament and of the members and the committees of each House, shall be
such as may from time to time be defined by Parliament by law”. “Whilst the explicit
reference to the House of Commons was removed by the said amendment, it has made
no material change in the substance of existing position of the law because the

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of
any alleged irregularity of procedure.
…………”
23
“122. Courts not to inquire into proceedings of Parliament.-
(1) ………
(2) 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.”
7
privileges enjoyed by the Houses before the said amendment cannot be determined
without making an indirect reference to the House of Commons.”24 25

The parliamentary rules regarding privilege are therefore, defined by the Parliament
itself, and are laid down in manuals of parliamentary procedure, Rules of Procedure
and Conduct of Business both in Parliament of India (Lok Sabha) and Upper House of
the Parliament of India (Rajya Sabha). These are based largely on British models,
notably the famous manual by Thomas Erskine May of 1851 (often simply referred to
as “Erskine May” in parliamentary practice).

The ‘other privileges’ instead of explicitly incorporated in the Constitution have to be

searched from the Rules of Procedure and Conduct of Business in Lok Sabha and
Rajya Sabha. The ‘other privileges’ are not comprehensive or all-inclusive in nature.
As there is no codification of these other privileges in contemporary times, the
privileges which were existing and were being enjoyed before the commencement of
the Constitution as provided by the Parliament of the United Kingdom can still validly
be claimed by both Houses of Parliament of India today also.

The non-codification of ‘other privileges’ instructed under Articles 105 (3) and 194
(3) results in ambiguity and vagueness of the nature and scope of ‘other privileges’.

The Report of the National Commission to Review the Working of the Constitution,
March 31, 2002 felt similarly as it expressed its concern about the uncertainty of the
existing law involving parliamentary privileges in India as follows:
“The founding fathers envisaged codification of parliamentary privileges by
Parliament by law. But so far no law has been made and these privileges
remain undefined. It is a somewhat curious situation that even after more than
50 years after the commencement of the Constitution we are unable to lay

24
Supra note 14, at 4.
25
A.G. Noorani in his book titled as Constitutional Questions in India [165 (New Delhi: Oxford
University Press 2002)] has criticized the changes made by the 44th amendment as being only “a
cosmetic sham because it has merely made a superficial change and it has not introduced any
substantive or qualitative alteration to the application of the privileges enjoyed by the British
Parliament to the Indian Legislative Bodies”.

8
 down precisely by law when a member of Parliament is not subject to the
same legal obligations as any ordinary citizen is.

The only idea behind parliamentary privileges is that members who represent
the people are not in any way obstructed in the discharge of their
parliamentary duties and are able to express their views freely and fearlessly
inside the Houses and Committees of Parliament without incurring any legal
action on that account. Privileges of members are intended to facilitate them in
doing their work to advance the interests of the people. They are not meant to
be privileges against the people or against the freedom of the press.

The Commission recommends that the time has come to define and delimit
privileges deemed to be necessary for the free and independent functioning of
Parliament. It should not be necessary to run to the 1950 position in the House
of Commons every time a question arises as to what kind of legal protection or
immunity a member has in relation to his or her work in the House.”26

The above recommendations by the National Commission to Review the Working of

the Constitution the regarding the codification of parliamentary privileges has not
been met yet. There are many un-resolved legal questions arising out.

Some of the controversies regarding the parliamentary privileges, which had

interfered in the effectual and proficient working of the Legislatures in India, are as
follows:

In President’s Reference No. 1 of 1965 27 (Keshav Singh’s case) one of the issues
before the Supreme Court of India was whether a Legislative Assembly could held
judges of any High Court responsible for contempt of the House. The Supreme Court

26
REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE
CONSTITUTION ¶ 5.15.3 (March 31, 2002) available at
http://lawmin.nic.in/ncrwc/ncrwcreport.htm.
27
President’s Reference No. 1 of 1965, A.I.R. 1965 S.C. 1186.
9
of India adjudicated that “Article 211 28 is mandatory in nature and it prohibits a
discussion in the State Assembly as to the conduct of any judge of Supreme Court or
of any of the High Courts”. The Supreme Court also held that “a High Court Judge
could not be held guilty of contempt of the Legislative Assembly for exercising his
constitutional power under Article 226 of the Constitution deciding upon a writ
petition filed by a citizen for enforcement of his fundamental rights against the
Assembly”. The judgement in Keshav Singh’s case raised the question that whether
the legitimacy of an order of a House penalizing someone for contempt of the House
can be questioned in a court of law or not.

The decision of the Supreme Court in P.V. Narsimha Rao v. State (CBI/SPE),29 “by
virtue of Article 105(2) of the Constitution, a Member of Parliament can claim
immunity from prosecution on a specific charge of bribery in a criminal court if the
acceptance of the bribe constitutes a motive behind the vote given by him in the
Parliament” raised the doubt as how justified is the Constitution in protecting the
criminal act of bribery committed by the members of the Houses of Parliament though
the act is related to the proceedings in the Parliament.

The Supreme Court in its judgement in Raja Ram Pal v. The Hon'ble Speaker: Lok
Sabha30 held that “the Parliament has power to expel a member but the sovereignty,
which can be claimed by the Parliament in England, cannot be claimed by any of the
Legislatures in India in the literal and absolute sense and the parliamentary privileges
in India are subject to the supervision and control of the courts and the Parliament
cannot determine for itself the nature, scope and effect of its privileges”.31

This judgement intensifies the need for codification of the exact privileges and
immunities available for the members of legislative bodies in India. When the
privileges are codified in clear terms, the invoking the distinctive power of
parliamentary privileges will be less as there will not be any ambiguity and leverage

28
211. Restriction on discussion in the Legislature.- No discussion shall take place in the
Legislature of a State with respect to the conduct of any Judge of the supreme Court or of a High
Court in the discharge of his duties.
29
Supra note 19.
30
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and Others, (2007) 3 S.C.C. l84.
31
Supra note 14, at 11.
10
for doubts. Parliament of India shields behind the fact of non-codification by using of
its special privileges and immunities in arbitrary manner in cases of freedom of
speech and criticism if faces from the general public and the media.

3. Statement of the research problem

There is need to raise question of whether changes are needed to ensure that privilege
does not provide an inappropriate immunity for parliamentarians from criminal
prosecution, to reinforce the principle of fair and equal treatment in law; whether
changes are needed to strengthen the appropriate protections for free expression in
proceedings and in the reporting of those proceedings in the media. The intention of
this research is to facilitate a wide-ranging and all comprehensive discussion on
parliamentary privilege. This research thesis poses questions as to how each of the
issues identified should be addressed.

4. Review of literature

The various books written or edited by foreign as well as the Indian authors on the
subject of parliamentary privileges, the various national and foreign judicial decisions
encompassing the subject, the Indian constitutional assembly debates, foreign
Parliamentary Privileges Acts, the various committee reports on the said subject, and
the articles published online and printed in many law journals and magazines
constitute literature on which the current research study revolves around and based
upon.

Treatise on the Law, Privileges, Proceedings and Usage of Parliament32 written by

Erskine May is the principal source of knowledge which expounds origin,
development of the legal provisions about privileges and immunities enjoyed by the
members of parliament in United Kingdom. Though being a manuscript of foreign
law, this book has proved pivotal as a theoretical foundation of constitutional base of
parliamentary privileges in India. The Supreme Court of India in its numerous

32
THOMAS ERSKINE MAY, TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND
USAGE OF PARLIAMENT (United Kingdom: LexisNexis 23rd ed. 2004).
11
judgments has done comprehensive references to the various relative theories and
principles written by Erskine May in his monumental work on parliamentary
privileges existed in England in form of this tome.33

Along with the above mentioned May’s Treatise, the work by Hardwari Lal titled as
Myth and Law of Parliamentary Privileges,34 is a very valuable research source on the
subject of parliamentary privileges especially in India. When the author himself, in
the year of 1975, was expelled from the Haryana Assembly, he argued his case
personally before the judiciary during the hearings as he had gone to the Punjab and
Haryana High Court challenging the resolution passed by the Haryana Assembly to
expel him. The High Court passed the judgement in his favour declaring that: “The
legislatures in India have no power to expel a duly elected member”.

The work by Prititosh Roy titled as Parliamentary Privilege in India35 has won the
prestigious Onauth Nauth Deb Prize and gold medal awarded by the Calcutta
University in the year 1967. This tome with precision and stimulating perspectives
explain definition, content and historical background of parliamentary privileges
along with certain controversies with gradual development of the relative law in India
with help of legislative bodies and the judiciary.

The volume written by Justice V.R. Krishna Iyer and Dr. Vinod Sethi titled as
Parliamentary Privileges: An Indian Odyssey36 studies the issues arising due to non-
codification of parliamentary privileges in India and the friction it causes between the
legislative bodies and the media.

Dr. Subhash Kashyap, former Secretary General of Lok Sabha in his two authoritative
commentaries titled as Parliamentary Procedure, Law, Privileges, Practice and

33
Keshav Singh v. Speaker, Legislative Assembly, A.I.R. 1965 All 349, 1965 Cri. L.J. 170; P.V.
Narasimha Rao v. State (CBI/SPE), (1998) 4 S.C.C. 626; Raja Ram Pal v. The Hon’ble Speaker,
Lok Sabha & Ors., (2007) 3 S.C.C. 184.
34
HARDWARI LAL, MYTH AND LAW OF PARLIAMENTARY PRIVILEGES (New Delhi:
Allied Publishers Private Limited 1979).
35
PRITITOSH ROY, PARLIAMENTARY PRIVILEGE IN INDIA (Oxford University Press 1991).
36
V.R. KRISHNA IYER & VINOD SETHI, PARLIAMENTARY PRIVILEGES: AN INDIAN
ODYSSEY (Capital Foundation Society 1995).
12
Precedents37, and Anti-Defection Law and Parliamentary Privileges38 provides a mine
of information with critical commentary about “Rules of Procedure and Conduct of
Business of both the Houses of Parliament” and “Directives of the Speakers” with the
flair of comprehensiveness combined with clarity and succinctness.

Parliamentary Privileges, Digest of Cases 1950-2000 39 , Volume I and II and

Parliamentary Privileges Court Cases, 2002, both publications by the Lok Sabha
Secretariat amass, deal with and narrate the monumental data regarding the
summaries of parliamentary privilege cases, and judgements by Supreme Court of
India and various High Courts during the period from 1950 to 2002 regarding the
same which demonstrate how beneficial are those in point of being as reference
instruments for the research on parliamentary privileges in India.

The work by Dr. Shashikant Hajare in his book titled as The Law of Parliamentary
Privileges in India: Problems and Prospects40 is a resourceful research study helping
readers to understand the basic concepts relating parliamentary privileges in Indian
democratic polity with critical and thoughtful discourses about the relevant issues.

An eminent constitutional lawyer of India Ram Jethmalani along with D.S. Chopra
deals with various aspects of parliamentary privileges including its conflict with the
freedom of speech and expression with exhaustive and detailed narratives of the
landmark case laws till 2015 in Parliamentary Privileges: Law and Practices41.

37
SUBHASH KASHYAP, PARLIAMENTARY PROCEDURE, LAW, PRIVILEGES, PRACTICE
AND PRECEDENTS (New Delhi: Universal Law Publishing Co. 2nd ed. 2006).
38
SUBHASH KASHYAP, ANTI-DEFECTION LAW AND PARLIAMENTARY PRIVILEGES
(New Delhi: Universal Law Publishing Co. 3rd ed. 2011) (1993).
39
I & II LOK SABHA SECRETARIAT,
PARLIAMENTARY PRIVILEGES. DIGEST OF CASES 1950-2000 (New Delhi 2001).
40
SHASHIKANT HAJARE, THE LAW OF PARLIAMENTARY PRIVILEGES IN INDIA:
PROBLEMS AND PROSPECTS (Mumbai: Himalaya Publishing House Pvt. Ltd. 2012).
41
RAM JETHMALANI & D.S. CHOPRA, PARLIAMENTARY PRIVILEGES: LAW AND
PRACTICES (New Delhi: Thomson Reuters 1st ed. 2015).
13
5. Objectives of the research: task description

The present study titled as Parliamentary Privileges under Indian Constitution: A

Critique has attempted a long-winded and comprehensive way to analyze the
prevailing provisions relating to parliamentary privileges in India; how it touches the
rights of people in ways both seen and unseen; what the solutions are to overcome the
existing lacunas to reconcile and strike a just balance between the rights of the
members of legislative bodies and the rights of the common public in India.

The basic objectives of the present research are:

 To examine the genesis, meaning, nature, scope and application of
“parliamentary privileges”
 To analyze searchingly and critically range and functioning of the relative
constitutional articles and provisions along with judicial vista on
parliamentary privileges in contemporary India
 To evaluate comparatively powers, privileges and immunities relished by
legislative bodies and their members in India with various international
perspectives
 To study the guidelines evolved/specified in relative international conventions
and various laws of the countries which can be applied in Indian scenario
 To mark out issues, controversies and challenges about parliamentary
privileges under the Constitution of India, 1950
 To formulate suitable and appropriate suggestions and recommendations to
overcome the existing issues and lacunas relating to law of parliamentary
privileges in India

These are the considerations the research scholar wanted to research upon and to
come up with the practical propositions. For the interest of justice and society as well
as for implementation of the relative principles and powers enumerated in the Indian
Constitution, the research scholar has studied various parliamentary privileges in
India under Articles 105 and 194 of the Constitution.

14
The research scholar has prepared the propositions accordingly by all exhaustive
doctrinal study, and is submitting it in form of present research thesis.

6. Hypotheses of the present research

The hypotheses on which this whole research study has been centred upon are:

 “Freedom of speech” and “immunity from legal proceedings” guaranteed by

clauses (1) and (2) of Articles 105 and 194 of the Constitution of India, 1950
are not absolute but are subject to the provisions of the Constitution and
related rules and standing orders.
 The indistinctness of the term “in other respects” in clauses (3) of Articles 105
and 194 creates ambiguity and perplexity in determining the scope of the
powers, privileges and immunities of either Houses or the members thereof.
 There is an imperative need for precise codification of the exact privileges and
immunities granted to the legislative bodies in India.

7. Methodology used for the research

The doctrinal or non-empirical component of research methodology has been

embraced for this research study for the degree of Doctor of Philosophy in Law.

The doctrinal study is principally founded on primary and secondary data gathered
from diverse sources which includes Constitutional Provisions, Constituent Assembly
Debates, Statutes, Case Laws, Books, National and International Law Journals,
Magazines, Newspapers, Published Interviews and Online Databases.

The present research study is analytical as well as descriptive. It is descriptive in so

far as it states the decisions of the court that have been considered activist over the
years. This represents the attitude of the judiciary towards judicial activism. It is
analytical when it attempts a critique of this attitude of the Supreme Court of India.

15
The research scholar has analytically and critically studied various Indian and foreign
judgments and law commission reports relating to parliamentary privileges.

The investigator has stipulated and recommended various provisions for the relative
amendments in present legislations for the future action by analyzing and comparing
between the relevant legislation existing in India as well as in other countries.

The cut-off date for data collection and analysis was August 30, 2016.

8. Chapter scheme

The present Ph.D. thesis is arranged into five segments. Introduction is the first
chapter and contains overall information about the research thesis like importance and
need of the present study, statement of the research problem, review of the relevant
literature, objectives and hypotheses, etc.

The second chapter titled as Genesis, Concept and Pre-Constitution of Parliamentary

Privileges in India defines parliamentary privileges and focuses on its nature and
scope. The chapter revolves mainly around genesis and evolution of parliamentary
privileges in ancient, medieval and British India.

Range of Parliamentary Privileges along with Judicial Vista in Post-Constitution and

Contemporary India with International Perspectives is the lengthiest third chapter of
thesis and describes thoroughly powers, privileges and immunities of the House of
Commons, its members and committees, and contemporary constitutional powers,
privileges and immunities of the legislatures in India, its members and committees
immediately before and as on January 26, 1950. The various privileges available to
parliamentarians and parliaments in some of the significant countries, and relevant
landmark national and international judicial vista is analysed systematically in the
third segment of the thesis.

16
The fourth section labelled as Issues, Controversies and Challenges about
Parliamentary Privileges under Indian Constitution marks out and examines
problems and concerns about parliamentary privileges in contemporary India.

The finale chapter of the present thesis is Findings, Recommendations and Net
Resultant is the net resultant of the whole research process stating the findings of the
current research along with the recommendations to remove or improve the issues or
lacunas of the present legal positions of the system of parliamentary privileges in
India. This chapter shows that the hypotheses formulated in chapter I are proved
affirmatively.

9. Method of citation used

The Bluebook: A Uniform System of Citation (Massachusetts U.S.A.: The Harvard

Law Review Association, 20th ed. 2015) is used for citing legal authorities, references
and footnotes.

SUMMATION OF CHAPTER II

Genesis, Concept and Pre-Constitution Compass of Parliamentary

Privileges in India

1. Parliamentary privileges: definition and purpose of

In legal arena the phrase ‘privilege’, is termed as “immunity or an exemption from

some duty, burden, attendance or liability conferred by special grant in derogation of
common right”.42 The idiom is stemmed from privilegium, “a law specially passed in
favour of or against a particular person”.

In Roman legal rule privilegium was used commonly as, “against a particular person”.
Later as the law progressed, the word exhibits only the meaning of “in favour of” of a
parliament or of the land. “It is in this latter sense that parliamentary privileges which
42
PRITITOSH ROY, op. cit. supra note 7, at 8.
17
are contrary to, or in derogation of, the ordinary rights of the citizens and which are
not subject to the ordinary civil law of the land.”43

The most commonly used and accepted definition of parliamentary privilege is

delineated by Sir Thomas Erskine May44 as:
“….the sum of the peculiar rights enjoyed by each House collectively as a
constituent part of the High Court of Parliament, and by members of each
House individually, without which they cannot discharge their functions, and
which exceed those possessed by other bodies or individuals. Thus privilege,
though part of the law of the land, is to a certain extent an exemption from the
general law. Certain rights and immunities such as freedom from arrest or
freedom of speech belong primarily to individual members of each House and
exist because the House cannot perform its functions without unimpeded use
of the services of its members. Other such rights and immunities such as the
power to punish for contempt and the power to regulate its own constitution
belong primarily to each House as a collective body, for the protection of its
own authority and dignity. Fundamentally, however, it is only as a means to
the effective discharge of the collective functions of the House that the
individual privileges are enjoyed by members.”

2. Parliamentary privileges: nature of

Nature of parliamentary privileges can be totalised as follows:

 Parliamentary privileges cannot be established or extended by resolution
 Parliamentary privileges are the result of judicial character of parliament
 Parliament has “exclusive cognisance” over all matters of its businesses
 The test of “necessary connection” to parliamentary proceedings is to be
applied while enjoying right to immunity
 Exclusive cognisance of parliamentary proceedings is ultimately constituted
by parliament only in its legislative capacity
43
Id. at 9.
44
Sir Thomas Erskine May who was also Clerk of the House of Commons of England (1871-1886)
is the famous author of the standard work on parliamentary practice-Treatise on the Law,
Privileges, Proceedings and Usage of Parliament.
18
  The sub judice rule is intrinsic and implied in understanding and application of
parliamentary privileges

3. Parliamentary privileges: scope/extent of

The gist of the established principles relating to scope/span/range/extent/reach of

parliamentary privileges in common law countries over the centuries are summarised
as follows:
 Parliamentary privileges are privileges of the House “as a whole”.
 Individual members can make claims of privilege “in so far as any denial of
their rights or threats made to them, would impede the functioning of the
House”.
 The method for ascertaining the scope or range of parliamentary privileges are
“to consult the Records of House of Commons and relative case laws in which
a claim of privilege has been made, and to examine whether it has been
admitted or refused”.
 A parliamentary privilege cannot be allowed in cases between non-members
of parliament or the cases between the members of parliament outside the area
of parliamentary proceedings in their individual capacity.
 Parliamentary privileges are only such rights and immunities which are
“necessarily connected and are reasonably necessary” for the smooth
functioning of any legislative body.
 Parliamentary privileges include “the statements by members of the legislature
in the course of its proceedings, and the right to remove, suspend or even
expel a member for disorderly conduct”.
 Parliamentary privileges does not include “to suspend or even expel a member
for disorderly conduct, for an indefinite period, or to punish by arrest and
commitment”.
 It is not within the scope of any parliament of the common law “the right to
punish contempt which did not obstructers its proceedings”.

19
  The courts cannot intervene “in matters affecting regularity of the
parliamentary procedure and the actions of officers in carrying out the
procedure of parliament”.
 Houses of Parliament cannot extend its privileges.
 Houses of Parliament cannot claim for itself claim new privileges.
 An act of Parliament only can create a new privilege or extend old privilege.
 Parliament can “apply its rights to new circumstances”.
 Each and any Houses of Parliament can “individually adjudicate and punish
breaches of its privileges”.

4. Parliamentary privileges in India: genesis and evolution of

As the ancient political system in India was not uniform, there was no elaborate and
sophisticated system of parliamentary law and privilege. Even so there were some
traces of parliamentary privileges traceable in ancient Indian polity.

Structure of ancient Indian Polity was based on a notion of “Sacred Law or Dharma
above the Rajan or King”. “In Vedic times, the two assemblies, Sabha and Samiti,
which were a check on the king, formed an essential feature of the Government.”45

A much developed system of parliamentary law in India can be found around 500
B.C., more than a millennium after the Vedic times. “The Buddhist Sangha or
Congregation, founded by the Buddha, was modelled after the Gana, or the great
Republican State at Mithila (in the Darbhanga district of North Bihar) and of the
Lichchhavis (the Republican State at Vaishali in the Muzaffarpur district of North
Bihar).”46

As Magadhan imperialism and the succeeding strong monarchies in ancient and

mediaeval India became dominant, the democratic facets of Indian polity gradually
faded away; but were resurrected during the British regime, “not a revival of the past
but an importation from England”.
45
Supra note 7, at 15.
46
Id. at 16.
20
5. Pre-Constitution compass of parliamentary privileges in British India

The underpinning of the British Empire was gradually laid in India in the course of
the era 1600-1765. “The full-fledged British parliamentary intervention came with the
East India Company Act, 1773 which is also called as the Regulating Act. The Act
created the office of the Governor-General of the Presidency of Fort William in
Bengal, to be aided by a Council of four Counsellors. The whole civil and military
government of the East India Company was vested in the Governor-General and
Council. The Governor-General and Council was authorised to ‘make and issue rules,
ordinances and regulations for the good order and civil government’ of the Indian
territories.”47

Legislative Council of India, during the phase between 1854 and 1861 acted similarly
like House of Commons in England in demanding parliamentary privileges and
immunities, and certain parliamentary privileges were established over that period for
the Legislative Council of India viz.:
 Privilege of freedom of debate;
 Right to repel outside attacks on its dignity and authority by means of a
resolution expressing displeasure against anyone including the courts too;
 Right to demand production of papers and information from the Executive
Government;
 Right of exclusion of strangers to ensure privacy of debate;
 Right to appoint a Select Committee likely as Committee of Privileges etc.

The Indian Councils Act, 1892 initiated and made historical progress regarding the
subject of “freedom of debate in parliament” by which the imposed constraints by the
Act of 1861 on “right of debate” were moderately eliminated. The Indian Councils
Act, 1909 48 removed further restraints on “privilege of freedom of debate in the
Legislative Councils”.

47
Id. at 20-21.
48
The Act is also commonly known as Morley-Minto Reforms.
21
By the Government of India Act, 1919 the Legislature was aliened from being a part
of the Executive for the first time in its Indian history and was granted freedom to run
its business independently from the other branches of Government. Thus Indian
Legislature was formed “bicameral with an upper House called the Council of State
and a lower House called the (Indian) Legislative Assembly, each presided over by a
president appointed by the Governor-General”. The Legislature was kept restricted in
its legislative function as before; however for the first time the following
parliamentary privileges were given expressed recognition viz.: “freedom of speech”,
“immunity of the legislators from action in court in respect of their speech or vote in
the Chamber”, “voting of demands for grants in the lower House” and “right of the
House to preserve order in the House by taking suitable action”.

The Government of India Act, 1935 through section 71 relating to “Privileges etc. of
members” of Provincial Legislatures granted certain privileges to its members such as
freedom of speech, immunity from legal proceedings in respect of anything said or
any vote given etc. Section 84 of the Government of India Act, 1935 conferring large
powers on the Governor “to make other rules, regulating, restricting or prohibiting
discussion or asking of questions on various subjects, e.g., governor’s discretion or
exercise of individual judgement, completion of financial business, Indian State and
its Ruler, Government relations with foreign state, tribal or excluded area, etc.”,
authorized the Chamber of the Provincial Legislature “to make its own rules of
procedure and conduct of business”.

The Sind Legislative Assembly (Powers and Privileges) Act, 1945 was enacted by
Sind which proved to be the first as well as one and only Indian Province to pass a
Privilege Act in India.

6. Privileges of Indian Provincial Legislatures immediately before the

Constitution of free India

The “general privileges of members of the Provincial Legislatures were consisted of:
 exemption from personal appearance in court during sessions;
 immunity from legal proceeding in respect of submission to Assembly;
22
  communication to Speaker of information of arrested member; and
 non-attachment of salary and allowances of members;
 non-service of court’s process during the period of sessions of the
Legislatures;
 release of arrested members for attendance in the Assembly.
 immunity from legal action for publication of debates and proceedings by
authority;
 Speakers’ power to prohibit publication of debates and proceedings;
 immunity from legal action of a faithful and correct report etc.

“Contempt of the Legislative Assembly” was defined “to consist of various forms of
irregular and libellous publications and use of criminal force on members or
obstruction of members”. The Committee of Privileges was provided for by the
Government of India Act, 1935 and the Act conferred powers on this Committee only
“to summon witnesses to give evidence or produce documents”.

During the period of August 15, 1947 till January 26, 1950, which is described as “the
period of twilight”, i.e., period between “the transfer of power and the commencement
of the Constitution of India”, parliamentary privileges in India achieved
independence.

The Constitution of India, 1950 through Articles 105 and 194 conferred “the entire
privileges of the British House of Commons on the Parliament of India and the
Legislatures of the States”.

“The struggle for parliamentary privileges, which began under the Englishmen
in the decade between 1853 and 1861 and was carried on by the Indian
nationalists between 1921 and1947, was finally rewarded with victory when
the free people of India wrote the parliamentary freedoms into the Constitution
of India.”49

49
Supra note 7, at 75-76.
23
 SUMMATION OF CHAPTER III

Range of Parliamentary Privileges along with Judicial Vista in Post-

Constitution and Contemporary India with International
Perspectives

1. Constitutional powers, privileges and immunities of the Legislatures in India,

its members and committees as on January 26, 1950

By taking the essential “quintessence of the English parliamentary privileges enjoyed

by the House of Commons in England” the legal policy by the Constitution drafters of
independent India granted special powers, privileges and immunities to Legislatures
of India along with its members.

Article 105 of the Constitution of India, 1950 provides for “the parliamentary
privileges in the respect of the Parliament of India”50 and Article 194 provides for
“those in respect of the Legislators of the States”51.

Apart from Articles 105 and 194 certain articles in the Constitution such as Articles
11852, 20853, 12154, 12255, 21156, 21257, and Articles 1958, 2059, 2160, 2261, 3262, 22663
and 361-A64 are intricately woven with the theme of parliamentary privileges in India.

50
Refer supra note 15. “105. Powers, privileges, etc., of the Houses of Parliament and of the
members and committees thereof.-…..”
51
Refer supra note 16. “194. Powers, privileges, etc., of the House of Legislatures and of the
members and committees thereof.- ….”
52
“118. Rules of procedure (of Lok Sabha).- ….”
53
“208. Rules of procedure (of Rajya Sabha).- ….”
54
“121. Restriction on discussion in Parliament.- ….”
55
“122. Courts not to inquire into proceedings of Parliament.- ….”
56
“211. Restriction on discussion in the Legislature.- ….”
57
“212. Courts not to inquire into proceedings of the Legislature.- ….”
58
“19. Protection of certain rights regarding freedom of speech, etc.- ….”
59
“20. Protection in respect of conviction for offences.- ….”
60
“21. Protection of life and personal liberty.- ….”
61
“22. Protection against arrest and detention in certain cases.- ….”
62
“32. Remedies for enforcement of rights conferred by this Part.- ….”
63
“226. Power of High Courts to issue certain writs.- ….”
64
“361A. Protection of publication of proceedings of Parliament and State Legislatures.- ….”

24
2. Nature and range of contemporary parliamentary privileges worldwide

Epitome of parliamentary privileges can be perceived from numerous theoretical

observations and opinions researched above, and can be grouped as follows:
 “Parliamentary privilege, though part of the law of the land, is to a certain
extent an exemption from the general law.
 Members are not outside or above the law which governs all citizens of that
respective country.
 For proper execution of proceedings of Parliament special powers, privileges
and immunities are necessary, and thus granted by the Constitution.
 Because of parliamentary privileges, the members of Parliament are secured
from molestation, insults or threats during their attendance in Parliament.
 The members of Parliament are excused and exempted from obedience to
some legal processes, to which other citizens are liable-the rights of the
members are in derogation of, or in excess of, the rights of the ordinary
citizens.
 Personal presence of a member of Parliament in Parliament cannot be
withdrawn by the summons of courts of law in civil cases.
 There are two categories of privileges i.e., privileges proffered to members
individually, and privileges proffered to the House collectively.
 Privilege essentially belongs to the House as a whole; individual members can
only claim privilege insofar as any denial of their rights, or threat made to
them, would impede the functioning of the House.
 Individual members cannot claim privilege or immunity on matters that are
unrelated to their functions in the House.
 Individual member’s rights are subordinate to those of the House as a whole in
order to protect the collectivity against any abuses by individual members.
 The Houses in their collective capacity and members individually have
responsibility to not abuse their rights and immunities.
 The rights, privileges and immunities of individual members of the House are
finite meaning they can be enumerated but not extended except by statute or,
in some cases, by constitutional amendment.

25
  Parliamentary privileges do not exist “at large” but applies only in context,
which usually means within the confines of the Parliamentary Precinct and
proceedings in Parliament.”

3. Classification of contemporary parliamentary privileges in India

On classification, rights and immunities bestowed to members of legislative bodies in

India come under the following headings:
 Freedom of speech
 Immunity from legal proceedings “in respect of anything said or vote given”
in parliamentary proceedings
 Immunity from legal proceedings “in respect of publication of any report,
paper, votes or proceedings”

The privileges and powers which come under the collective category are:
 Power to make rules for regulation, procedure and conduct of business
 Immunity from legal proceedings about “irregularity of procedure,
maintaining order or conduct of business”
 Right to prohibit publication of report, paper or proceeding
 Uncodified but implied “power to commit for contempt and power to expel”

While analysing the various national and country wise privileges and immunities
available to respective parliaments and parliamentarians the Chapter III explores and
scrutinises the landmark judgments through which the law relating to parliamentary
privileges in India as well worldwide has been interpreted and developed such as:
 McGrain v. Daugherty, 273 U.S. 135 (1927)
 Barenblatt v. United States, 360 U.S. 109, 111 (1960)
 United States v. Johnson, 383 U.S.169 (1966)
 Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504, n. 15 (1975)
 Hutchinson v. Proxmire, 443 U.S.111 (1979)
 New Brunswick Broadcasting Corporation v. Nova Scotia (Speaker of the
House Assembly), (1993) 100 DLR (4) 212 (Canada)

26
  Zundel, (1999) 127 O.A.C. 251
 Canada (House of Commons) v. Vaid, [2005] 1 SCR 667
 Michaud C. Bissonnette, 2006 QCCA 775
 M.S.M. Sharma v. Shri Krishna Sinha, A.I.R. 1959 S.C. 395
 The President’s Reference No.1 of 1965, A.I.R. 1965 S.C. 745 [Keshav Singh
v. Speaker, Legislative Assembly, A.I.R. 1965 All 349, 1965 Cri. L.J. 170]
 Sub-Committee of Judicial Accountability v. Union of India, (1991) 4 S.C.C.
699
 P.V. Narsimha Rao v. State (CBI/SPE), A.I.R. 1998 S.C. 2120
 Kunwar Pal Singh Rathi v. State of Utter Pradesh, A.I.R. 2002 All. 27 (DB)
 Manjit Singh s/o Moolsingh Sethi v. Maharashtra Legislative Assembly, 2006
(4) Mh.L.J.
 Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Others, (2007) 3 S.C.C.
184
 Yitachu v. Union of India, A.I.R. 2008 GAU. 103(FB)
 Amarinder Singh v. Special Committee, Punjab Vidhan Sabha,
MANU/S.C./0298/2010

Chapter III thoroughly discusses the various observations and provisions of reports,
legislative acts and governmental publications of various countries including India by
examination of which the research on parliamentary privileges in India gets benefitted
of such as:
 First Report of the Special Committee on Rights and Immunities of Members,
presented to the House on April 29, 1977 (Canada)
 Constitution Act, 1982, R.S. 1985 (Canada)
 Parliament of Canada Act, R.S. 1985, c. P-1, § 12 (Canada)
 Criminal Code, R.S. 1985, c. C-46, §§ 132 & 136 (Canada)
 Australian Parliamentary Privileges Act, 1987
 Privilege in the Historical Context, Table Research Branch, Ottawa, House of
Commons (1990) (Canada)
 Seventh Report of the Standing Committee on Justice and the Solicitor
General, presented to the House on December 19, 1990 (Canada)
27
  Special Committee on the Review of the Parliament of Canada Act, Minutes of
Proceedings and Evidence, March 11, 1990, Issue No. 7 (Canada)
 United Kingdom Joint Committee Report on Parliamentary Privilege (1999)
(United Kingdom)
 Fiftieth Report of the Standing Committee on Procedure and House Affairs,
presented to House of Canada on March 22, 2002 (Canada)
 Parliamentary Privilege, Parliamentary Brief, Wellington, office of the Clerk
of the House of Representatives (2007) (New Zealand)
 Standing Orders of the House of Representatives, Wellington, House of
Representatives, Standing Order 23 (2008) (New Zealand)
 House of Lords & House of Commons London, Joint Committee on
Parliamentary Privilege, Report of Session (2013-14) (United Kingdom)
 Report of the National Commission to Review the Working of the Constitution,
2002 (India)
 Rules of Procedure and Conduct of Business in the Council of States (Rajya
Sabha) (New Delhi: Rajya Sabha Secretariat 8th ed. 2013) (India)
 Rules of Procedure and Conduct of Business in Lok Sabha (New Delhi: Lok
Sabha Secretariat 15th ed. 2014) (India)

SUMMATION OF CHAPTER IV

Issues, Controversies and Challenges about Parliamentary Privileges

under Indian Constitution

Tradition still plays a significant part in the way Parliament does its job, in the
powers it exercises and in its constitutional relationship with the Crown and the
courts. Much of the strength of parliamentary privilege, not least the extent to which it
is widely recognised and accepted, lies in its antiquity; the same is true of its
weaknesses, in particular the obscurity and obsolescence of certain areas of
privilege.
-UK Joint Committee on Parliamentary Privilege Report65

65
I HOUSE OF LORDS & HOUSE OF COMMONS LONDON, JOINT COMMITTEE ON
PARLIAMENTARY PRIVILEGE, REPORT OF SESSION (Chapter 1 ¶ 9 1998-99).
28
As the subject of parliamentary privilege itself is vast and complicated in “law and
practice” various concerns and conflicts have arisen over the centuries on the same,
e.g., “sub judice matters, search warrants and subpoenas, the power of Houses to
punish for contempts, citizen’s right of reply, immunity of non-members and the
scope of freedom of speech have on numerous circumstances brought legislative
bodies and its members in divergence with constituents and the executive branch of
government”.

Parliamentary privilege along with the potential for its abuse and misuse as has been a
contentious issue as well the other issues such as: whether citizens should be allowed
a right of reply; whether the privilege of freedom of speech in parliamentary
proceedings needs to be qualified rather than absolute; and, whether privilege allows
persons to be unjustly defamed etc.

Granting of “special rights to parliamentarians”, more rights, privileges and

immunities than rights conferred to a common citizen of India is considered to be a
disapproving feature of parliamentary privileges.

Nonetheless, G. Griffith puts an observation that: “Recent cases on parliamentary

privilege may not point in any discernible direction or reveal any definite trend,
turning as most of them do on the particular facts at issue”.66

An effective separation of power between legislatures, judiciary and executive has

proven the effective solution for avoiding or at the most lessening friction, issues and
conflicts between various rights and powers conferred specially on these branches.
Still “centuries of developing statutory and procedural frameworks with regard to
privilege have still left many uncertainties and grey areas as to the role each arm of
government is intended to perform”.67

66
G. Griffith, Parliamentary Privilege: Major Developments and Current Issues 102 (Briefing Paper
No. 1/07, NSW Parliamentary Library Research Service 2007).
67
Supra note 4, at 50.

29
The controversial issues and challenges of the subject of parliamentary privileges
under Constitution of India are discussed underneath along with the national and
international judicial opinions and theoretical contemplations as follows:
 Collison of the concept “parliamentary privilege” and Rule of Law
 Contention that “fourth exception to section 499 of Indian Penal Code 1860 is
not applicable to reports of parliamentary proceedings” seems doubtful.
 Faithful and accurate publication of proceedings containing defamatory
statements is subject to law of defamation in India.
 Articles 105(4) and 194(4) are limited in scope.
 Provisions under section 135A of the Code of Civil Procedure, 1908 clashes
with provisions under Articles 105(3) and 194(3).
 Substance of powers and privileges of the committees of legislative bodies in
India brim with difficulties and doubts due to absence of relevant specific
legislation.
 Conferring powers on the committees generally irrespective of their functions
or needs seems unwarranted and excess.
 Technical issue of “prorogation of the House of Commons as on January 26,
1950” which resulted in non-existence of its all sessional committees renders
committees of legislative bodies in India powerless.
 Parliamentary privileges sometimes clash with rights of public as well
executive privilege.
 Issue of “extent to which documents held in the possession of members are
privileged in orders of discovery of documents”.
 “Breach of privileges” and “powers to punish contempt” varies worldwide.
 The most controversial aspect of parliamentary privilege is power and
jurisdiction of courts to review parliamentary privileges.
 Deleting reference of “House of Commons” in Articles 105(3) and 194(3) by
the Constitution (Forty-fourth Amendment) Act, 1978 proves to be truly “a
cosmetic sham”.
 Intention of Drafting Committee of the Constitution to codify “other
privileges” by legislation in due course of time is still not fulfilled after 76
years.

30
  Decision in the JMM Bribery case, 1998 is inconsistent with the principle of
Rule of Law.
 “Uncodified and not defined penal powers” of legislative bodies in India lead
to legal polemics between legislatures, courts and citizens in India.
 “Principles of natural justice” are not explicitly provided and applied by the
Rules of Procedure and Conduct of Business in Lok Sabha, and Rules of
Procedure of Rajya Sabha.
 Absolute discretion of the legislative bodies in India to decide the period of
suspension of a member from the legislative bodies is against the Rule of Law.

SUMMATION OF CHAPTER V

Findings, Recommendations and Net Resultant

1. Findings and recommendations

After thorough contemplation and profound research on the subject of parliamentary

privileges under the Constitution of India the following submissions and proving of
hypothesis are tendered with humility which is believed to be of upmost value for the
necessitous upgradation of the subject under evaluation and research:
 Parliamentary privileges are indispensable for proper functioning of legislative
bodies.
 Need of amendment of section 499 of Indian Penal Code, 1860
 Principle established in Wason v. Walter68 should be universally applicable in
India by respective state legislations.
 Section 135A(1)(a) of the Code of Civil Procedure, 1908 should be repealed.
 Articles 105(2) and 194(2) to be appropriately amended by to clarify position
of available immunity in case of publication of defamatory statements by a
member.
 Article 105(2) to be precisely amended to clarify that “immunity enjoyed by
the members of legislative bodies does exclude the corrupt acts committed by

68
Wason v. Walter, (1868) 4 Q.B. 73.
31
 the parliamentarians whether in connection with parliamentary proceedings or
otherwise”.
 Articles 105(4) and 194(4) to be appositely amended to expand the scope of
“non-members” in relation to confer parliamentary privileges and immunities.
 Article 194(3) and Article 105(3) of the Constitution, and rules 260, 266, 267
and 268 of the Rules of Procedure Assembly and rules 263, 269, 270 and 272
of the Rules of Procedure and Conduct of Business in Lok Sabha, have to be
amended.
 Importunate need to define “other privileges” implied in Articles 105(3) and
194(3) of the Constitution
 “Principles of natural justice” should be explicitly provided and applied by the
Rules of Procedure and Conduct of Business in Lok Sabha, and Rules of
Procedure of Rajya Sabha.
 The Indian legislative bodies to modify the Rules of Procedure and Conduct of
Business in their respective Houses under Articles 118 and 208 to make sure
the compliance with the constitutional canons of and restrictions on freedom
of speech.
 Powers and privileges of the committees of legislative bodies in India have to
be defined precisely by an expressed legislation.
 Development of effective “statutory and procedural frameworks” for
separation of power between legislatures, judiciary and executive seems to be
the solution for less friction between workings of these branches of democratic
polity.
 Suggested possibility of “parliamentary privilege to be disapplied to enable
reliance on proceedings in Parliament for prosecution of criminal offences,
either selectively or generally”
 Judiciary while interpreting any of the parliamentary privileges has to
ruminate “real intention” and “original meaning” of the constitutional
principles.
 Scope of penal powers for contempt of legislative bodies in India should be
clarified in certain terms through codification.
 An imperative and overdue need of codification of parliamentary privileges

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2. The entire hypotheses are affirmed and proved.

In chapter I Introduction of this research thesis titled as Parliamentary Privileges

under Indian Constitution: A Critique the three hypotheses were formed on which this
whole research study has been centred upon as follows:

 “Freedom of speech” and “immunity from legal proceedings” guaranteed by

clauses (1) and (2) of Articles 105 and 194 of the Constitution of India, 1950
are not absolute but are subject to the provisions of the Constitution and
related rules and standing orders.
 The indistinctness of the term “in other respects” in clauses (3) of Articles 105
and 194 creates ambiguity and perplexity in determining the scope of the
powers, privileges and immunities of either Houses or the members thereof.
 There is an imperative need for precise codification of the exact privileges and
immunities granted to the legislative bodies in India.

It is submitted that all the three hypotheses of this Ph.D. research process are proved
affirmatively.

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