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SUPREME COURT ON PARLIAMENTARY PRIVILEGES AND

CONSTITUTIONAL FREEDOM
Under the constitutional law and the arena of Indian Parliament, the expression
privilege and immunity signifies certain special or exceptional rights of Lok Sabha or
RajyaSabha or its individual members which are generally accepted as necessary for
the exercise of their constitutional functions. Article 1051 (1), (2), (3) and (4) of the
Indian Constitution Act, 1949 provides for the parliamentary privileges to the members
of Parliament and similar privileges has also been granted to the state legislators under
Article 1942 (1), (2) and (3).
In the case of Tej Kiran Jain v. N. Sanjiva Reddy3, it was held that Article 105(2)
confers immunity inter alia of anything said in Parliament. The word anything is of
the widest import and is equivalent to everything. Nonetheless, these privileges often
comes in conflict with the constitutional and fundamental rights of the citizens of India.
Furthermore, the privilege of freedom of speech does not mean an unrestricted license
of speech. For example, our Constitution forbids discussion in Parliament on the
conduct of judges except on motion for their removal. In this connection, it may be
pointed out that in India, there have been clashes between freedom of speech as
guaranteed to the members of Parliament and fundamental rights as given to the people
under Article 19(1)(a)4 of the constitution.
1 Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof
(1) Subject to the provisions of this constitution and 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.
(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 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.

2 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 a 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 the 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, 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.
3 1970 AIR 1573, 1971 SCR (1) 612
4 All citizens shall have the right to freedom of speech and expression.

The struggle first manifested itself in the Searchlight5 case, where for publishing a full
account of a debate, despite an order of the speaker of Bihar State Legislature ordering
some portions of the debate to be expunged, the editor of the newspaper was
committed for breach of privilege and sentenced to imprisonment. The editor moved
the SC quashing the committal, inter alia, arguing that his freedom of press under
Article 19(1)(a), which gave him the right to publish a fair and accurate report of the
proceedings of the house, was violated by the privileges under art 194(3) and hence
latter must be struck down as being unconstitutional.
The Fundamentals of the Indian Constitution are contained in its preamble which
secures to its citizens, justice, social, economic and political; liberty of thought,
expression and belief, faith and worship; equality of status and opportunity; and to
promote among them all fraternity assuring the dignity of the individual and the unity
of nation. It was to give effect to these objectives that fundamental rights were enacted
in Part III. These rights are regarded as fundamental because they are most essential for
the attainment by the individual of his full intellectual, moral and spiritual statute.
These are inviolable in the sense that no law, ordinance, custom, usage or
administrative order, can abridge or take away a Fundamental Right.
In the case of Maneka Gandhi v. Union of India6, Bhagwati J. Observed, These
fundamental rights represent the basic values cherished by the people of this country
(India) since the vedic times and they are calculated to protect the dignity of the
individual and create conditions in which every human being can develop his/her
personality to the fullest extent. So, the violation of these fundamental rights would be
unfair in the sense that it obstructs the proper growth of the individual.
How the legal rights of human beings are protected? The Supreme Court in the historic
judgment of Judges Transfer Case7 held that any member of the public having
sufficient interest can approach the court for enforcing constitutional or legal rights of
such persons or group of persons who cannot approach the court because of poverty or
for any other reasons, even through a letter. But the position is quite different with
privileges. Privileges, though part of the law of the land, are to a certain extent an
exemption from the ordinary law under Article 105(3), Parliament may pass a law to
define its privileges while any law in contravention with any of the fundamental rights
will be invalid. If the legislature of a state under the first part of clause (3) makes a law
which prescribes its powers, privileges and immunities, such law would be subject to
Article 138, which talks about the laws inconsistent with or in derogation of the
5 M.S.M. Sharma v. Srikrishna Sinha, AIR 1959 SC 395 (Supreme Court of India) [hereinafter Searchlight]
6 1978 AIR 597, 1978 SCR (2) 621
7 S.P. Gupta v. Union of India; AIR 1982 SC 149

8 Laws inconsistent with or in derogation of the fundamental rights


(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far
as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void.

fundamental rights, and clause (2) of that Article would render it void if it contravenes
or abridges the Fundamental Rights guaranteed by Part III. Again the Constitution
guarantees the fundamental right to freedom of speech and expression. The right
includes the right to freedom of press. A question arises as to the extent of this right
vis-a-vis the privileges of the Legislature.

Now the question arose after the advent of the Indian Constitution, is whether the
Fundamental Rights control in any way the Parliamentary privileges, it is also the
question as to which will prevail in case of conflict between fundamental Rights and
powers, privileges and immunities of Parliament or the State Legislature? It will be
considered by taking into consideration the important cases that came before the Courts
since the inception up to now. The key question in each case has been this: Can a
privilege or the exercise of a privilege be struck down if it violates a Fundamental
Right? Would Fundamental Rights override the privileges and would privileges be
subject and subordinate to Fundamental Rights? Put differently, does the power of
Judicial Review extend to Parliamentary privileges?
Article 13(2) of the Constitution contains the power of Judicial Review. The Supreme
Court can strike down a law that violates any Fundamental Right. The earlier view
held by the Supreme Court9 was that the power of Judicial Review under Article 13(2)
would not extend to privileges under Clauses 1 and 2 because the language of these
clauses itself precluded Judicial Review. So far as Clause 3 was concerned, the
Supreme Court was of the view that the uncodified privileges were not law within the
meaning of Article 13(2) and therefore not capable of being struck down. Although
Article 105(3) contains a clear mandate in favor of codifying privileges, Parliament
taking cue from the aforesaid reasoning of the Supreme Court has resolved to leave the
privileges uncodified in fear that if privileges were to be codified in the form of a
statute, they would be struck down in case of a conflict with Fundamental Rights.
Several privileges are likely to conflict with Fundamental Rights and these privileges
are almost certain to be struck down if codified into a statute.
In 2007, 11 Members of Parliament were caught on camera by a news channel,
accepting bribes to ask certain questions in Parliament and thereby misusing their
powers for illegal gratification and monetary gain.10 The Parliament of India suspended
these members who in turn approached the Supreme Court for relief. The Speaker and
the Chairman of the Lower and Upper House of Parliament, refused to appear before
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes
laws passed or made by Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.

9 Pandit MSM Sharma v. S.K. Sinha, AIR 1954 SC 636.


10 The revelation was part of a Sting operation carried out by AAJ TAK titled Operation Duryodhan.

the Supreme Court. They asserted that the exercise of privileges fell within the
exclusive jurisdiction of Parliament and that the Court had no power to entertain the
matter even; let alone exercise its power of Judicial Review. The Supreme Court
decided to proceed with case inspite of Parliaments harsh stand and the Union of India
therefore defended Parliaments view in the Supreme Court.
A Constitution Bench led by Chief Justice Sabharwal brought about the first binding
change in the law of privileges in India in Raja Ram Pal v. The Honble Speaker, Lok
Sabha11. The Court held that the power of Judicial Review under Article 13(2) would
extend to the privileges on a case to case basis, overruling its earlier decisions.
A recent Supreme Court decision in the case, Alaagapuram R. Mohanraj and Others v.
The Tamil Nadu Legislative Assembly and Others, penned by Justice Chelameshwar,
not only throws light on the interrelationship of Fundamental Rights and Parliamentary
privileges, but also examines the scope of the Courts power to intervene in disciplinary
proceedings that are governed by rules framed by every legislature for this purpose. In
this case, some members of a party were suspended for unruly conduct in the assembly.
The petitioners directly moved to the Supreme Court and claimed that their suspension
fell foul of their four fundamental rights, under Articles 19(1)(a), 19(1)(g)12, 2113 and
1414. One of the contentions of the SC while quashing the first three arguments of the
petitioner was that the freedom of speech guaranteed to legislators is merely a
constitutional right and cannot be equated with the fundamental right. However, SC
admitted to the fact that Article 14 was infringed as arbitrariness was shown in
providing proof against the petitioners.
Sometimes to decide the existence of a certain privilege, sometimes to protect the
Fundamental Rights of the citizens and the Press and sometimes to uphold the
constitutional spirit and values, the Judiciary of India has embarked upon this issue.
The reason for this has profound implications for the Doctrine of separation of powers,
checks and balances, i.e., to ensure that the power in political institutions shall not be
concentrated in the hands of particular individuals or groups and, Parliamentary
sovereignty. Parliamentary sovereignty may be contrasted with separation of powers,
which limits the legislature's scope often to general law-making, and judicial review,
where laws passed by the legislature may be declared invalid in certain circumstances.
Problems of Parliamentary privileges have become manifold, but these days it is being
increasingly realized that privileges are essential for elected representatives of the
people and the members of Parliament and such press as well as outside public must
respect these in true sense and spirit. The scope of Courts power to intervene in
11 JT 2007 (2) SC 1.
12 To practise any profession, or to carry on any occupation, trade or business.
13 No person shall be deprived of his life or personal liberty except according to the procedure established by law.
14 The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.

disciplinary proceedings that are governed by rules framed by every legislature for the
purpose needs to be examined in order to attain a solution. The appraisal of the
interrelationship between the Fundamental or Constitutional Rights and Parliamentary
privileges needs to be done as the speech given by an MLA comes under the ambit of
Article 19(1)(a) or not, is still questionable.
In India, the Parliamentary privileges has almost totally damaged the Fundamental
Rights guaranteed by the Article 19(1)(a) and Articles 22(1)15 and (2)16. Our
representatives have lamentably failed to realize that an institution can earn respect and
confidence only by its efficient services and benevolent activities. Its penal power can,
no doubt, silence people, but, by such intimidation, it ultimately wipe out the real spirit
of democracy. They should not be intolerant to criticism from outside, because others'
opinion often helps us to rectify our errors. Moreover, one may argue that the penal
power is, normally, exercised by judges who are specially qualified for finding out the
legal faults of other people. But the legislature is composed of people from various
walks of life. Most of them are not sufficiently educated to determine whether or not a
speech or article by an outsider has caused a real breach of privilege of the House or its
members. While they take up such an issue, the accused can never expect justice and
fairplay.
It is also to be noted that there is a marked decline in parliamentary standards. As S L
Sikri observed, "Most of the debates are ill-attended and ineffective. Obviously the
process of decline some years ago, but the matter has drifted from bad to worse at a
rapid speed. A large number of popular representatives speak out without making any
homework. It has even been remarked that they do not maintain the decorum and
dignity of the House. Thus, indiscipline has become the prime cause in hindering the
working of our legislatures. In recent years, some leaders have even expressed their
unwillingness to disclose their educational qualifications, bank balance and other
assets. In such cases, some honest criticism may emerge, but the legislators may regard
it as a breach of privilege and summon the aggrieved persons for sending them to jails.
The answer to the question as to why they have not yet codified, under clause (3) of
Articles 105 and 194, their other privileges within long five decades, is that in this case,
the legislation would be tested on the touchstone of Article 13(2) which has stipulated
that if an order or law contravenes a Fundamental Right, it would be ultra-viresand
void. In order to keep their privileges perpetually above these rights, they have reduced
the clause to a dead letter.
15 No person who is arrested shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice.

16 Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a
period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the
court of the magistrate and no such person shall be detained in custody beyond the said period without the authority
of a magistrate.

In fact, a transitory provision cannot have higher sanctity than a permanent provision
like citizens rights which are, in the view of Constitution's makers 'fundamental'.In this
connection, another misconception of our legislators needs to be corrected. In my
opinion, though the Courts need not interfere with the internal proceedings of the
House, they also shall not admit to its extension at the expense of the rights and liberty
of the people. Our representatives are too sensitive to even honest criticism from
outside. Such intolerance is really inconsistent with the democratic system. In such
case, there is only one solution. The legislators must codify their other privileges by
statutory laws. Those which would be in conformity with the fundamental rights,
would ultimately prevail and people would surely accept them as necessary rights of
the members. It is the only way to save our democracy from legislative tyranny.