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ALLIANCE SCHOOL OF LAW

PROJECT TOPIC: IMMUNITIES FOR


MEMBERS OF PARLIAMENT- AN
ANALYSIS

SUBJECT NAME:- CONSTITUTION


SUBMITTED TO: - PROF .DEVAIAH SIR
SUBMITTED BY: - RITIK RAVI SHARMA
REG. NO.: - 17040142049
ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my Prof.


Devaiah N G who gave me the golden opportunity to do this
wonderful project on the topic Immunities for members of parliament-
An Analysis , which also helped me in doing a lot of Research and i
came to know about so many new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who
helped me a lot in finalizing this project within the limited time frame
INDEX

Introduction
Research Questions
Enjoyment of immunities individually.
Enjoyment of immunities collectively.
Punishment prescribed for breach of immunities.
Codification of the parliamentary immunities and
privileges.
Judicial review of the parliamentary immunities.
Principle of nature justice.
Case laws
Conclusion
Bibliography
Introduction

Parliamentary immunities and immunities are defined in Article 105 of the Indian

Constitution. The members of Parliament are exempted from any civil or criminal liability for

any statement made or act done in the course of their duties. The immunities are claimed only

when the person is a member of the house. As soon as he ends to be a member, the

immunities are said to be called off. The immunities given to the members are necessary for

exercising constitutional functions. These immunities are essential so that the proceedings

and functions can be made in a disciplined and undisturbed manner.


 Research Questions

1) Codification of parliamentary immunities affect the working of


members of parliament and act as shackles in the dispensing of
their duty?

2) Should parliamentary immunities be subject to restrictions


imposed under section 19(2)?

The immunities individually enjoyed by the members are:-


 Freedom of speech in parliament

The members of the parliament have been vested with the freedom of speech and expression.
As the very essence of our parliamentary democracy is a free and fearless discussion,
anything said by them expressing their views and thoughts are exempted from any liability
and cannot be tried in the court of law.

The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different
from the freedom of speech and expression provided to a member of the parliament. It has
been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to
rules and orders which regulates the proceedings of the parliament.

This right is given even to non-members who have a right to speak in the house. Example,
attorney general of India. So that, there is a fearless participation of the members in the
debate and every member can put forward his thought without any fear or favour.

Some limitations are also present which should be followed in order to claim
immunity

 Freedom of speech should be in accordance with the constitutional provisions and


subject to rules and procedures of the parliament, stated under Article 118 of the
Constitution.
 Under Article 121 of the Constitution, the members of the parliament are restricted
from discussing the conduct of the judges of the Supreme Court and the High Court.
But, even if this happens, it is the matter of the parliament and the court cannot
interfere.
 No privilege and immunity can be claimed by the member for anything which is said
outside the proceedings of the house.

 Freedom from arrest


The members enjoy freedom from arrest in any civil case 40 days before and after the
adjournment of the house and also when the house is in session. No member can be arrested
from the limits of the parliament without the permission of the house to which he/she belongs
so that there is no hindrance in performing their duties.

If the detention of any members of the parliament is made, the chairman or the speaker
should be informed by the concerned authority, the reason for the arrest. But, a member can
be arrested outside the limits of the house on criminal charges against him under The
Preventive Detention act, The Essential Services Maintenance Act (ESMA), The National
Security Act (NSA) or any such act.

 Freedom from appearing as a witness

The members of the parliament enjoy special immunities and are exempted from attending
court as a witness. They are given complete liberty to attend the house and perform their
duties without any interference from the court.
 Immunities enjoyed by the members collectively as part of
parliament

 Right to prohibit the publication of proceedings

As stated in Article 105(2) of the Constitution, no person shall be held liable for publishing
any reports, discussions etc. of the house under the authority of the member of the house. For
paramount and national importance, it is essential that the proceedings should be
communicated to the public to aware them about what is going on in the parliament.

But, any partial report of detached part of proceedings or any publication made with malice
intention is disentitled for the protection. Protection is only granted if it reflects the true
proceedings of the house. If any expunged proceedings are published or any
misrepresentation or misreporting is found, it is held to be the breach of the privilege and
contempt of the house.
 Right to exclude strangers

The members of the house have the power and right to exclude strangers who are not
members of the house from the proceedings. This right is very essential for securing free and
fair discussion in the house. If any breach is reported then the punishment in the form of
admonition, reprimand, or imprisonment can be given.

 The right to punish members and outsiders for breach of its


immunities

The Indian Parliament has the power to punish any person whether strangers or any member
of the house for any breach or contempt of the house. When any breach is committed by the
member of the house, he/she is expelled from the house.

This right has been defined as ‘keystone of parliamentary privilege’ because, without this
power, the house can suffer contempt and breach and is very necessary to safeguard its
authority and discharge its functions. This power has also been upheld by the judiciary in
most of the cases. The house can put in custody any person or member for contempt till the
period the house is in session.
 The right to regulate the internal affairs of the house

Each house has a right to regulate its proceedings in the way it deems fit and proper. Each
house has its own jurisdiction over the house and no authority from the other house can
interfere in regulation of its internal proceedings. Under Article 118 of the Constitution, the
house have been empowered to conduct its regulation for proceedings and cannot be
challenged in the court of law on the ground that the house is not in accordance with the rules
made under Article 118. The Supreme Court has also held that this is general provision and
the rule is not binding upon the house. They can deviate or change the rule anytime
accordingly.
 Punishments prescribed for breach of immunities or
contempt of the house

1. Imprisonment – If the breach committed is of a grave nature the, punishment can


be given in the form of the imprisonment of any member or person.

2. Imposing fine – If in the view of the parliament, the breach or contempt


committed is of economic offence and any pecuniary gain has been made from the
breach then, the parliament can impose fine on the person.

3. Prosecuting the offenders – The parliament can also prosecute the one
committing the breach.

4. Punishment given to its own members – If any contempt is committed by the


members of the parliament then, he is to be punished by the house itself which
could also result in the suspension of the member from the house.
 What constitutes parliamentary breach or contempt
of the house?

There is no codification to clearly state that what action constitutes a breach and what
punishment it entails. Although, there are various acts which are treated by the house as the
contempt. It is generally based on the actions which tend to obstruct the proceedings of the
house and creates a disturbance for the members. Some of them are briefly discussed.

Giving any misleading statement in the house

The acts which are done solely with the purpose to mislead are considered as the contempt of
the house. If the statement is made by a person who believes the information to be true then,
there is no breach involved. It has to be proved that the statement was made with an intention
to mislead the house.

Disturbance by the outsiders

Any disruption created by shouting slogans or throwing leaflets etc. with the purpose of
disturbing the proceedings of the court is regarded as a major contempt by the house. The
person is imprisoned by the house for a specified period of time or a warning is given
depending on the seriousness of the case.
Any kind of assault on the members

Here, the privilege is available when the member is performing his duties. An assault done by
any person on the member of the parliament in the course of performing his duties is treated
as contempt of the house.

Writings or speeches about the character of the member

any speech published or libel made against the character of the member is regarded as the
contempt of the house. These are regarded to be necessary because it affects the performance and
function of the member by reducing the respect for him.

So, clearly, any attack on the privilege of the members by any means is considered as a breach of
the privilege and the parliament can take action regarding the same.
 Freedom of press and the parliamentary immunities

The parliamentary immunities restrict the freedom of the press, which is a fundamental right.
Caution to a great extent has to be taken by the press while publishing any report of the
proceedings of the parliament or the conduct of any member. There are instances where the
press can be held liable for the contempt of the house:

1. Publishing any matter concerning the character of any member of the parliament

2. Any pre-mature publication of the proceedings

3. Misreporting or misrepresenting the proceeding of the house

4. Publishing the expunged portion of the proceedings

In spite of the fact that the freedom of the press is subject to the parliamentary immunities,
certain enactments have been made for the protection of the freedom of the press. If the
fundamental right is being violated, there is no meaning of democracy. The freedom of the
press has to be protected because we need to be informed about the acts of our
representatives. Parliamentary Proceedings (protection of the publication) Act, 1977 protects
the rights of the press under certain given circumstances

1. The reports of the proceedings are substantially true.

2. The report is made without malice.

3. The report is made for public good.

4. The report should not constitute any secret meeting of the house.
 Codification of the parliamentary immunities

Our Indian parliament enjoys supreme powers as being a member of the parliament. There is
also misuse of the immunities given to them because they do not have many restriction on the
rights. They have the power to be the judge of their own proceedings, regulate their
proceedings, what constitutes the breach and what punishment should be given for the
breach, are solely decided by them.

The power vested in them is too wide as compared to the fundamental rights vested in the
citizens. With no codification of the immunities, they have gained an undefined power
because there is no expressed provision to state the limitations on their powers. The privilege
from any civil arrest 40 days before and after the session and during the session results that
they are exempted from arrest for even more than 365 days. No comprehensive law has been
till date enacted by the parliament for the codification of the parliamentary immunities.

It is mostly resisted by the members because then it will be subject to the fundamental rights
and would be in the purview of judicial review. Justice M.N. Venkatachaliah heading the
Constitution Review Commission also recommended to define and delimit the immunities for
the free and independent functioning of the legislature. This is based on the apprehension that
codification will involve interference of the court as the matters would be presented in the
court of law. Non-codification of immunities has led to greater powers being enjoyed by the
members. But, now the time has come to codify and define the immunities and actions must
be taken so that there is smooth functioning of the parliament without any conflict.
 Judicial review of the parliamentary immunities

The Indian judiciary has been vested with the responsibility of the protection of the
fundamental rights. Parliament members claim absolute sovereignty over their powers and in
any case does not want the judiciary to interfere. But, the judiciary is regarded as the guardian
of our Constitution and it cannot sit quietly if any fundamental right of a citizen is violated
due to immunities or when there is an escape from any criminal liability.

The judiciary has to take a stand on the wrongs committed by the members who are taking
the shelter of the immunities. The Supreme Court in Keshav Singh’s case observed that the
immunities conferred on the members are subject to the fundamental rights.

The Supreme Court has also held that any conflict arising between the immunities and the
fundamental rights would be resolved by adopting harmonious construction. The judiciary is
very well aware of the fact that it does not have jurisdiction over parliamentary matters but it
is necessary for the society that any violation should be resolved by the court as it deems fit.
 Parliamentary immunities and the principle of
natural justice

In a recent judgment by the Supreme Court judges in the case of Algaapural R. Mohanraj v Tamil
Nadu Legislative Assembly, it was held that the principle of the natural justice cannot be violated
by the privilege committee.

Facts of the case

On 19-02-2015, some members of the Tamil Nadu Legislative Assembly was suspended on the
ground of unruly conduct. In furtherance of this, a privilege committee was formed to inquire
about the conduct of the members and further proceedings related to breach of privilege. It was
found and recommended by the take necessary action against six members for the breach of
privilege.

By a resolution dated 31-03-2015, the members were suspended for a period of ten days for
the next session. Further it was extended to cutting of their salaries and giving any other
benefit till the suspension period. A writ petition was filed by the members in the Supreme
Court under Article 32 of the Constitution.
Contentions raised by the members

The contention was raised by the petitioners that their fundamental rights under Article
19(1)(a), 19(1)(g), 14 and 21 of the Constitution have been violated by the said resolution.

Judgment by the court

The court rejected the contention of the petitioners that the resolution violated Article
19(1)(a) and 19(1)(g). It further accepted the contention that the rights was violated under
Article 14 of the Constitution. The court observed that the video recording which showed the
act of the members amounting to the breach was not presented before the petitioners. If it
would have been presented, then they might had the chance to explain their conduct. It was
further directed by the court to restore the salary and other benefits of the petitioner.
Case Laws

1.Sir Thomas Erskine May: Parliamentary Practice, 16th Edn., Chapter III, p.42.

2.Tej Kiran Jain v. N. Sanjeeva Reddy, (1970) 2 SCC 272: AIR 1970 SC 1573.

3.Pandit M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 409.

4.P.V.Narsimha Rao v. State (1998) 4 SCC 626

5.Jatish Chandra Ghosh v. Harisadhan Mukharjee AIR 1956 Cal 433.

6.K. Anandan Nambiar v. Chief Secretary, Government of Madras, AIR 1966 SC

657, 664: (1996) 2 SCR 406

7.Tej Kiran Jain v.N. Sanjiva Reddy (1970) 2 SCC 272:AIR 1970 SC 1573

8.(1998) 4 SCC 626

9.LR 4 QB 73

10.Powers, Immunities and Immunities of the State Legislature, Re, AIR 1965 SC

745: (1965) 1 SCR 413.

11.Ansumali Majumdar v. State of W.B. AIR 1952 Cal. 632

12.AIR 1962 Cal 632

13.AIR 1966 SC 657

14.Rule 248: there are similar provisions in the rules of Rajya Sabha.

15.AIR 1959 SC 395: 1959 Supp (1) SCR 806.

16.State of Karnataka v. Union of India (1977) 4 SCC 608, 654

17.Indira Nehru Gandhi v.Raj Narain 1975 Supp.SCC 1, 47: AIR 1975 SC 2299

19.AIR 1965 SC 745, 7652

20.In case of Parliament, Articles 118 and 120.

21. AIR 1965 SC 745.


Conclusion

The immunities are conferred on the members for smooth functioning of the parliament. But,

these rights should always be in conformity with the fundamental right because they are our

representatives and work for our welfare. If the immunities are not in accordance with the

fundamental rights then the very essence of democracy for the protection of the rights of the

citizen will be lost. It is the duty of the parliament not to violate any other rights which are

guaranteed by the constitution. The members should also use their immunities wisely and not

misuse them. They should always keep in mind that the powers do not make them corrupt.

The parliament cannot adopt every privilege that is present in the house of commons but

should adopt only those immunities which accordingly suits our Indian democracy.
BIBLIOGRAPHY

The Constitution of India, 1950

Mp Jain

https://en.m.wikipedia.org

www.aph.gov.au

https://assembly.coe.int

https://www.asgp.co
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