Parliamentary Privileges: How it is being misused.

CONSTITUTION II

RESEARCH PAPER

Submitted by : Submitted to :

YOGESH ANAND DR. SHYAMLA KANDADAI

ASSOCIATE
Semester II ‘A’
PROFFESOR,LAW
ROLL NO. 1147 NUSRL, Ranchi

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

 ABSTRACT
Legislature is called as the law making body of the government. It is this body which makes laws
for the country and executive follows these laws. These laws are made by the members of
legislature who are either directly or indirectly elected by the people of India. The laws made by
them are supposed for the betterment of the people. But to make laws based only for betterment
of country, it is important that the members of legislature are free to legislate in subject matters.
The must be free from all types of fear or corrupt ideas. So certain immunities, powers and
privileges are vested with them. The purpose of the research is to emphasize on what are the
parliamentary privileges and immunities given to a member of parliament and to the member of
legislative assemblies. The paper tries to know what is the exact meaning and use for these
provisions. The paper will also deal about the sources of these privileges and what are the
punishments given if there is a breach of these parliamentary privileges. The paper will also
emphasize on how members of parliament and legislative assemblies misuse these power to
fulfill their self interests and how Constitution has failed to provide any remedy under such
circumstances due to lack of express provision regarding expulsion of members of parliament.
Ruling parties expertise in molding the Constitution to prioritize its own interest and even the
courts have found themselves bound by the express language of the statutes and constitutionally
sound arguments to give judgments against what would otherwise have been held to be logically
correct. The research paper discusses those instances in detail. These limitations arose the
research question for the paper firstly, whether members of parliament or state legislature are
misusing their privileges and immunities? And secondly, should absolute privileges be given to
the members of parliament and to the members of state legislative assemblies? These questions
will be analyzed at the end after the research work is conducted. At the end suggestions have
been given by the researcher on how to overcome such limitation for the benefit of the India.
 INTRODUCTION
The Constitution of India provides for the establishment of Parliament for the Union which
consists of the President and two houses to be known respectively as the Council of States and
the House of the People.1Likewise, there shall be a legislature which shall consist of the
Governor, and Legislative Assembly. Also, there is Legislative council in the six states. 2
Members of the two houses at the centre and at the state are called Members of Parliament and
Members of Legislative Assemblies respectively. In India under article 105 and article 194
certain privileges and powers have given to the member of legislatures. The 'privilege', in
relation to parliamentary privilege, refers to immunity from the ordinary law, which is
recognized by the law as a right of the houses and their members. Privilege in this restricted and
special sense is often confused with privilege in the colloquial sense of a special benefit or
special arrangement. The concept of parliamentary privileges, has originated from England.

According to Sir Thomas Erskine May Parliamentary privileges is defined as :-“the sum of the
peculiar rights enjoyed by each House collectively is a constituent part of the High Court of
Parliament, and by members of each House individually without they could not discharge their
functions, and which exceed those possessed by other bodies or individual.” 3 He says that these
privileges are important for the smooth functioning of the legislature.

In India, as Parliament exercises sovereign power to make laws. No outside power or authority
can issue a direction to issue a particular piece of legislation. 4 Parliament has been assigned a
place of importance in the governmental structure of the country. For the same the members of
parliament at center and legislative assemblies in state have been vested with certain immunities,
privileges and powers. According to Sir May the distinctive mark of the privilege is its “ancillary
character”, which is necessary for the fulfillment of functions of legislature. But, the dilemma is
the members on whom such powers are vested have time and again violated the sanctity of
Parliament and indeed have themselves engaged in corrupt and mal practices to fulfill their self
interest and ultimately taken an immunity from the constitution itself. The research paper,
reflects clearly reflects those instances.

1
Article 79 :- Constitution of Parliament.
2
Article 168 of The constitution of India,1950.
3
May: Parliamentary Practice, 16th Edn., Chapter 3, Page : 42.
4
Union of India v Prakash P Hinduja, AIR 2003 SC 2612.
 POWERS AND PRIVILEDGES

Sir Thomas Erskine May in his book Parliamentary Practice, defined Parliamentary privileges
as:-“the sum of the peculiar rights enjoyed by each House collectively is a constituent part of the
High Court of Parliament, and by members of each House individually without they could not
discharge their functions, and which exceed those possessed by other bodies or individual.” 5 May
further says that though ‘privileges’ are the part of the law of the land, to a certain extent, they
are an exemption to ordinary law. With a view to enabling Parliament to act and discharge its
high functions effectively, without any interference or obstruction from any quarter, without fear
or favours, certain privileges and immunities are attached to each House collectively and to the
members thereof individually.6 Also, under Article 194,7 in the matter of privileges the position
of state legislature is same as that of the House of Parliament. 8 According to Sir May individual
members enjoy these privileges as if not then the House cannot perform its function without the
unimpeded use of the services of its members and by each House for the protection of its
members and the vindication of its own authority and dignity 9. Article 105 of the Constituion of
India , under its sub-clause (1) and (2) has expressly mentioned about the freedom of speech and
freedom of publication of proceeding, while in sub-clause(3) it gives parliament power to
decided what it want for itself from time to time. Following are the privileges:-

 Freedom of Speech in Parliament

This has been expressly safeguarded under the Constitution.10 It is of the essence of the
parliamentary democracy that people’s representatives should be free to express
themselves without fear of legal consequences. Also, this clause of the article 105, i.e.
105(1) has made an express provision regarding freedom of speech in Parliament which
suggests that this freedom is independent of the freedom of speech conferred by article 19
and unrestricted by the exceptions contained therein. 11
Courts are prohibited to inquire
for validity of any proceeding in parliament on the ground of irregularity of procedure 12.
5
May: Parliamentary Practice, 16th Edn., Chapter 3, Page : 42.
6
Jain M.P., Indain Constitution Law, Eight Edn., pg 89.
7
Article 194- Privileges given to the state legislature.
8
Ibid.
9
May: Parliamentary Practice, 16th Edn., Page : 42.
10
Articles 105(1) and 105(2).
11
Narasimha Rao P.V. v. State (CBI/SPE), (1998) 4 SCC 626, 707-708 : AIR 1998 SC 2120.
12
Art. 122(1) of the Indian Constitution.
 Member enjoys complete protection even though there words are malicious, frivolous or
false to their knowledge, under this clause. The only limitation which is required is that to
prove that those words which were spoken were during the course of business of
Parliament. The courts have no say in the matter and have none accordingly. 13 Thus, court
has no jurisdiction to take action against member, for his speech even which amount to
contempt of court14. The Mp’s are immune from the actions of defamatory statements if
said in Parliament. All the privileges enjoyed by Member of Parliament are enjoyed by
member of state legislative assemblies by virtue of article 194(1).
The immunity is not limited only to mere spoken words, it extends to the votes according
to clause (2). In P.V. Narsimha Rao15 case, it was held that the members of Parliament
who had taken bribe and voted in Parliament against the no-confidence motion brought
against the government are entitled for protection under 105(2), and are not answerable to
any court. But MP’s who had given the bribe but not voted on the no-confidence motion
are not entitled for protection under article 105(2). But for availing immunity under
article 105(2) the vote or spoken words must be done during the course of business of
Parliament.
 Freedom of Publication of Proceedings
No person is to be liable to any proceedings in any court in respect of the publication of
any report, paper, votes or proceedings by or under the authority of the Parliament. 16
Under article 361-A no person can be held liable for any civil or criminal proceeding for
publishing any true report on newspaper or broadcast on wireless telegraphy, of either
House of parliament and State legislatures, unless it is proved that it is made with
malice17. However, this immunity is not available for secret sitting of House 18. Also this
protection under article 105(2) does not extent to publication made by a private person
without the authority of a house. In the Searchlight case,19 the Supreme Court ruled that
publication of inaccurate or garbled version of speech delivered in the House, or
misreporting the proceedings of the House amounts to breach of privileges given to the
13
Tej Kiran v Sanjeeva Reddy, AIR 1970 SC 1573.
14
SurendraMohanty v. NabakrishnaChodhury, AIR 1958 Ori 168.
15
P.V.NarsimhaRao v. State, (1998) 4 SCC 626.
16
Article 105(2).
17
Art. 361A of the Indian Constitution.
18
Art. 361A (1) proviso, of the Indian Constitution.
19
M.S.M. Sharma v Shri Krishna Sinha,1959 AIR 395.
 Parliament. Accordingly, charges were attracted against the editor of the newspaper
Searchlight even though the facts published were true. In the same case it was held by the
SC that privileges under 194(3) will have overriding effect fundamental rights of speech
under article 19(1).
 Other Privileges:- In other respects, article 105(3) as well as article 194(3) lays down
that the power privileges and immunity of each house of parliament and if the member
thereof shall be such as may from time to time be defined by the parliament by the law
and until so defined those which existed before the coming into force the 44 th CAA, 1978
will be applicable. Some of other privileges are:-
i. Freedom from arrest :- According to this priviledge no member of state legislature can
be arrested or be imprisoned in a civil proceeding during the session and a period of 40
days before and 40 days after the session of the house. Tough the privilege does not
extend to arrests or imprisonment on a criminal charge or for contempt of court or to
preventive detention. In K. Anandan Nambiar v. Chief Secretary, Gov. of Madra 20
case it was held that MP’s don’t enjoy any special status as compared to an ordinary
citizen in respect of valid detention orders.
ii. Internal Autonomy :- For the proper working of Parliament, each House should be able
to discharge its functions without any outside interference. Therefore, it has been
conferred by the Constitution.21The validity of proceedings within a House cannot be
called in a question in a Court even if the House deviates, or does not strictly follow, or
suspends its own rules of procedure. Similarly the houses have the power to discipline
its own member; it can regulate its own procedure, right to exclude strangers, to
ensure privacy of debate, etc. But, the member cannot discuss about a conduct of any
Judge of Supreme Court or of High Court, except for removal of the Judge 22. Each
House reserves to itself the power to suspend any rule of procedure in its application to
a particular business before it.23

20
AIR 1966 SC 657.
21
Article 122 (1).
22
Art. 121 of the Indian Constitution.
23
MSM Sharm a v Sinha, AIR 1960 SC 1186.
 SOURCES OF PARLIMENTARY PRIVILEGES IN INDIA

In India parliamentary privileges is derived from the following sources:-

i. The Constitution :-
 Freedom of Speech in Parliament under article 105(1), which is independent of freedom
of speech guaranteed under article 19 and unrestricted.24
 Immunity of anything said or any vote given in the House of Parliament or any
committee thereof and immunity in respect of any publication of reports, papers, votes or
proceedings of the House, which is published by or under authority of either House.
[Article 105(2)].
 Bar of jurisdiction of court to inquire into proceedings of House on ground of
irregularity.[Article 122(1)] and bar of court over the member of Parliament exercising
constitutional powers for the regulating procedure business or order in Parliament.
 Immunity in respect of publication of proceeding of a house in newspaper. [Under article
361-A].
ii. Statutes: - Since there is no codification of privileges and immunities which are given to
the members of Parliament, there are some statues which deals with the privileges of
Parliament such as Parliamentary Proceedings (Protection of Publication) Act, 1977. By
virtue of Article 105(3) , parliament is vested with power to make such statues as it may
think is required for the time being until these privileges are codified.
iii. Rules of House: - Though Article 118(1) does not refer to privileges but confers rule
making power upon each house of parliament to make rules to regulate its procedure and
conduct of business. It is possible for a house to make subsidiary, provisions relating to
the privileges for a house while regulating its procedures.
iv. Judicial Interpretations:- Since the courts have to interpret the Constitution, including
Art. 105 and Art. 194 as well as the laws relating to the powers and privileges of the
legislature in cases properly brought up before them by persons outside the house of
parliament who may have been affected by the exercise of those privileges, decisions of
the high court of the land, i.e. SC constitute a part of law of privileges as held in M.S.M.
Sharma v Shri Krishna Sinha[1959 AIR 395] case.
24
P.V.NarsimhaRao v. State, (1998) 4 SCC 626.
 PUNISHMENT FOR THE BREACH OF PRIVILEDGE

If any person or any officer violates the individual or collective privileges of a Member of
Parliament by means of disrespect, abuse, etc, such acts are considered as breach of
Parliamentary Privileges which is punishable by the house. These Parliamentary Privileges in
India have been enforced so that the respect of Parliament its members can be ensured and
smooth functioning of daily business of Parliament goes on. The House has the power to
determine as to what constitutes breach of privilege and contempt as till date there is no
codification as to what parliamentary privilege is and what is not.

Following are the punishments which are given for the breach of privilege of either member

 Imprisonment – If the breach committed is of a grave nature then, the punishment can
be given in the form of the imprisonment of any member or person.
 Imposing fine – If in the view of the parliament, the breach or contempt of House is
committed is of nature of economic offence and any pecuniary gain which has been
made from the breach then, the parliament can impose fine on that person.
 Prosecuting the offenders – The parliament can also prosecute the one committing the
breach or contempt of House. He may be liable for fine or can be given warning.
 Punishment given to its own members – If any contempt is committed by the
members of the parliament themselves then, he/she is to be punished by the house
itself which could also result in the suspension or expulsion of the member from the
house.

Following are some examples of breach of Parliamentary Privileges:-

 Misleading statement in house:- In this case the statement which is give solely with the
purpose to mislead the House from the actual problem or conceal the actual fact is
contempt of house. Though if the person believes the statement is right no breach in
there.
 Distrubance by outsiders:- Any disruption which is 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.
 PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS
“In Pandit M.S.M. Sharma's or search light case it was contended by the petitioner that the
privileges of the House under A.194 (3) are subject to the provision of Part III of the
Constitution. In support of his contention the petitioner relied on the Supreme Court's decision in
Gunupati Keshavram Reddi v. Nafisul Hasan25. In this latter case Sri Mistry was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Assembly for contempt of the
House and was flown to Lucknow and was kept in a hotel in Speaker's custody. On his applying
for a writ of habeas corpus, the Supreme Court directed his release as he had not been produced
before a magistrate within 24 hours of his arrest as provided in Article 22 (2). This decision
therefore indicated that Article 194 (or Article 105) was subject to the Articles of Part III of the
Constitution. In Sharma's case the Court held that in case of conflict between fundamental right
under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As regards
Article 21, on facts the Court did not find any violation of it. In Powers, Privileges and
Immunities of the State Legislature, Re , the proposition laid down in Sharma's case was
explained not to mean that in all cases the privileges shall override the fundamental rights.
The rules of each House provide for a committee of privileges. The matter of breach of privilege
or contempt is referred to the committee of privileges. The committee has power to summon
members or strangers before it. Refusal to appear or to answer or to knowingly to give false
answer is itself a contempt. The committee's recommendations are reported to the House which
discusses them and gives its own decision.”26

PARLIMENTARY PRIVILEGES AND COURT

According to Article 105 and Article 194 subjects the powers, privileges and immunities are
vested to the members of Parliament and state legislature. Parliament can proceed in cases of
contempt of its authority or take up motions concerning its privileges and immunities in order to
seek removal of obstructions to the due performance of its legislative functions. If any question
of jurisdiction arises that matter is decided by a court of law in appropriate proceedings. Also
Parliament cannot decide election disputes for which special authorities have been constituted

25
AIR 1954 SC 636
26
Cited from Bhatt Jayant, An analysis of Parliamnetary Priviledges,
http://www.legalserviceindia.com/articles/parliamentary001.htm
under the Representation of People Act, 1951 enacted in compliance with Article 329 through its
power granted under article 105 or article 194 for state.

NEED OF PARLIMENTRY PRIVILEDGES

Privilege is a special right. Juridically, a privilege is opposite of a duty. 27 The privileges are
essential for the proper functioning of the Houses of Parliament. According to May 28 the
privileges are those certain rights without which it would be impossible for either house to
maintain its independence of action or the dignity of its position or for the members to discharge
their functions without a hindrance. Thus, members of the Parliament and the state legislatures
also enjoy certain privileges and these exist for the benefit of the House and not for the personal
benefit of the members. They are necessary for the welfare of the nation. According to Paton,
privilege covers those acts that are prima facie unlawful but allowable in certain circumstances. 29
A. Kocourek attributes many meaning to privilege in English usage. It may mean immunity,
power or unlawful acts allowable in certain circumstances. The Constitution of Indian uses the
terms powers, privileges and immunities in articles 105 and 194. The Commons zealously
guarded their privileges because they had a bitter experience of the Crown and his institutions.
We have based our parliamentary privileges on the House of Commons, yet our position is
different. Unlike the United Kingdom, we have a written federal constitution, which is supreme.
The separation of powers operates in the form of checks and balances. Power of judicial review
expressly conferred on the higher judiciary forms one of the basic features of the Constitution. 30
As against the sovereignty of British Parliament, our Parliament is subject to the Constitution.
We have an entrenched Bill of Rights in part of III of the Constitution. Thus, to pass a legislation
without being influenced by the bureaucrats or without the fear of any member of society, these
immunities and privileges are necessary which will help in the betterment of the nation.

It is to be always kept in mind that these privileges are thus secured, not with the intention of
protecting members against prosecution for their own benefit, but to support the rights of people,
by enabling their representatives to execute the function of their respective offices without the
fear of criminal or civil cases against them.
27
W.N. Hohfeld quoted in MAD Freeman (ed.), Lloyd'd Introduction to Jurisprudence 543 (Fifth ed.).
28
May: Parliamentary Practice, 16th Edn., Chapter 3, Page : 42.
29
G.W. Paton, A Text Book of Jurisprudence 292 (Fourth ed.).
30
L Chandra Kumar v. Union of India, AIR 1997 SC 1125.
 MISUSE OF PARLIMENTARY PRIVILEDGES

Power corrupts and absolute power corrupts absolutely. This acts aptly with respect to MPs and
MLAs. Constitution has become a puppet in the hands of these members as they make her act
accordingly. Indian history is full of cases where such instances have taken place and even
judiciary failed to provide any relief to people as they are the real sufferers at the end of the day.
Following are some cases which have been studied to base the abovementioned findings.

 In the case of Raja Rampal v Hon’ble Speaker of the Lok Sabha, 31 members of the
Parliament have been alleged to engage in some of the unethical and corrupt practices.
The question which arose was whether in exercise of the powers, privileges and
immunities are the houses of the Parliament competent enough to expel the members and
if yes then would it be subjected judicial review? And to what extent? To answer these
questions the SC drew the distinction between the terms ‘disqualification’ and
‘expulsion’ and observed that while disqualification strikes at the very root of the
candidate’s qualification and renders him/her to occupy member’s seat, expulsion deals
with a person who is otherwise qualified, but in the opinion of the House is unworthy of
membership. The court held that since the Constitution talks only about disqualification
and not expulsion, expulsion would be ultra-vires and accordingly it didn’t follow.

Evidently, the judgment does not logically hold good. The Constitution has been used to fulfill
the needs. Even when it was proved that members did take money for asking questions on the
floor, they were not expelled. Just because the provision was not explicitly mentioned, members
were not expelled. Such instances question the sanctity of Parliament which is always answered
negatively.

 In the Searchlight case,32 which is the first instance where we can see how parliamentary
privileges were misused .The Supreme Court ruled that publication of inaccurate or
garbled version of speech delivered in the House, misreporting the proceedings of the
House or even the publication of true report will amounts to breach of privileges given to
the Parliament. Accordingly, charges were attracted against the editor of the newspaper

31
(2007) 3 SCC 184.
32
M.S.M. Sharma v Shri Krishna Sinha,1959 AIR 395.
 Searchlight. Even though the facts which were published we those parts of the speech of
a member delivered in Bihar legislative assembly which the speaker had ordered to be
expunged from the proceedings of the Assembly.

These are unbridled and unaccustomed power given to the members and houses which need to be
cut short for the proper functioning of the Parliament.

 In the case of CERS V Union of India33 is the perfect case to substantiate the point
regarding misuse of power by the MPs and MLAs. Here, members of Parliament fearing
that since they have ‘office of profit’ and will be disqualified thus they didn’t hesitate to
adding those offices of profit under exceptions and invalidating their disqualification by
following the correct procedure of law. Time and now these members have used their
power to pursue their interest.
 In the case of Kuldeep Nayar v union of India34, again where the requirement of
domicile has been removed for being a member of the Rajya Sbaha, also questions the
feature of basic structure of the Constitution. This again was directed towards filling of
political motives and ultimately found their way as the requisite amendment was done.
The move was irrational because how a person will be able to represent the status and
problem of the particular if he/she doesn’t belong to that particular interest. This direct
questions the federal nature of Indian Constitution.
 In the case of Raj Narain v Indira Gandhi,35 Smt. Indira Gandhi conducted election on
corrupt practices and won. Opposing loosing party filed the case against her on the use of
such practices and she was held guilty of her conduct. The decision caused political crises
in India that led to the imposition of Emergency by Gandhi’s government from 1975 to
1977.
 In the case of PV Narshima rao v state36, case, it was held that the members of
Parliament who had taken bribe and voted in Parliament against the no-confidence
motion brought against the government are entitled for protection under 105(2), and are
not answerable to any court. In any profession taking bribe is unethical and what is

33
Consumer Education Centere v Union Of India, 1995 AIR 922.
34
AIR 2006 SC 3127.
35
1975 AIR 865.
36
(1998) 4 SCC 626.
 unethical can’t be a good in eyes of law. But, the MP’s were saved and no charges of
applied on them even though they were involved in corrupt practices just because they
have voted inside the ordinary course of business of parliament.

CASES OF FRAUD AND MISCONDUCT

Act of engaging in any corrupt or mal practice by the Members of Parliament is in the sharp
violation to the provisions of the Constitution, as Constitution itself casts a duty upon members
to carry out their functions in true faith and allegiance to the Constitution of India by upholding
the sovereignty and integrity of India.37 Such commitments have only become a farce by the
Parliament Members who are busier in filling their own pockets with the public money. Because
the inside scene of Parliamentary proceeding has not hidden from anyone. Following are some
of the instances taken to substantiate the above point.

As in the case of Shri B S Yeddurappa v the State of Karnataka 38, all the charges of illegal
mining were dropped against him and also the amount of 40 crore which was imposed upon him
when he appealed in the apex court. The common question of law raised for the petitioner in
these petitions is that, the C.A.G. report based on which the complaint has originated being the
exclusive property of the House, same cannot be made use by the complainant as against the
petitioner. The FIR could not have been registered though no information regarding commission
of any cognizable offence is informed by the complainant. There being no specific allegation of
demand or request by the petitioner to obtain any valuable thing for his pecuniary advantage. In
light of these arguments he was set free.

Even the charges have been dropped where no evidence could be found out or were not
deliberately produced. As Akhilesh Yadav was set free and CBI dropped all the charges leived
against him due to lack of evidence.39 He was charged with the fine of Rs around 2. 63 Crore.

There again lodged an FIR against Anurag thakur, BJP MP, and his father Prem Kumar
Dhuamal who was the former CM of Himachal Pradesh regarding irregularities in the grant of

37
Article 99-Oath and Affirmations.
38
2000 (1) S.C.C. 168.
39
NDTV, December 20, 2013.
land on lease for the construction of cricket stadium. 40 The final decision has not yet come. This
is a example of exemption of office of profit given from disqualification of MP under article 102.

In the case of M. Karunanidhi v Union of India 41 all the charges were dropped which were filed
under the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973, as the Act itself was held to
be unconstitutional because the state act was not repugnant to the The Central Act and it didn’t
repeal the central act which continue to in operation even after the operation of the repeal of the
central act. Hence, on account of repugnancy the act held to be void. In, Kuldeep Singh Senger,
BJP MLA from UP has engaged himself in another such disapproved and profane action by
raping a woman. The victim committed suicide and her father died during the investigation
only.42

P. Chidambaram, former finance minister and senior congress leader, was named as accused
for money laundering in the Aircel- maxis case involving foreign investment approvals that were
allegedly illegal. He is accused of misusing his office as Finance Minister in the Government of
Manmohan Singh to velar foreign investment deals.43

In the case of Naveen Jindal v Zee44, Naveen Jindal claimed that executives of Zee has been has
been truing extorting an amount of Rs 100 crore on him, on the condition that if he doesn’t
advertise for the said channel, the channel would run negative stories against him about the coal
fields to his firm. Though, the channel defied all the claims of the Jindal, it could not sufficiently
proved the point and again judgment passed in his favor.

Praful Patel is another name charged under another serious offence. It was for seeking to place
with a Canadian Firm an order for a passenger identification system for Air India at an inflated
price, allegedly in return for a consideration.45

Moreover, such illegal acts have always been appreciated when instead of expelling those people
from any authority bestowing them from other such acts. For example, Suresh Kalmadi,

40
The TOI, JULY, 26, 2018.
41
1979 AIR 898.
42
Unnao Rape case, The TOI, April 13, 2018.
43
NDTV, October 25, 2018.
44
C.S. (os) no. 881/2014.
45
Business Standard, June 11, 2014.
accused in the scam of Common Wealth Games, was made life President of Indian Olympic
Association.46

The list is exhaustive. There are many instances where members of legislature have been found
to be involved in the Members have charged with the cases from being of murders to rape and
corruption. But eventually no actions take place against them giving more boosts to their
activities. Situation needs to be sorted out.

STATISTICS ANALYSIS OF CORRUPTION CHARGES

The following section has been mentioned to present some statistical figures regarding the
prevalent situation of Corruption amongst the Parliament members to substantiate the gravity of
the situation. Here, the allegations are not imposed upon any specific political party but as a
whole by taking all the political parties the situation is being analyzed.

 In 5 years, recognized parties have given tickets to 26 candidates with rape cases.
 327 candidates with cases of crime against women were given tickets by recognized
parties.
 Study released on by the IndiaSpend shows that the ruling Bharatiya Janata Party (BJP)
has the most number of MPs/MLAs with criminal cases.47
 Study released on by the Association for Democratic Reforms (ADR) shows that the
43% of elected member of 16th Lok Sabha election have criminal record.
 Mayawati's Bahujan Samaj Party (BSP) and Mamata Banerjee's All India Trinamool
Congress (AITC) also gave tickets to candidates with such criminal cases pending
against them.
 Recently , in 2019 election 11 winner have murder charges against them and Pragya
Singh Thakur, the newly-elected BJP MP from Bhopal, faces terror charges in
connection with the 2008 Malegaon blasts.

46
NDTV, January 10,2013.
47
Abhram Neha, 55% of Lok Sabha MPs Facing Criminal Charges Are From BJP, (2019),
https://www.indiaspend.com/55-of-lok-sabha-mps-facing-criminal-charges-are-from-bjp/ visited on 10th Nov 2019
  The study says that of 1,580 (33 per cent) MPs/MLAs analysed with declared criminal
cases, 48 have declared cases related to crimes against women.48
 It was found that more than 4000 cases were pending against MP’s and MLA’s from the
past three decade.49
 In the new Lok Sabha, nearly 29% of the cases are related to rape, murder, attempt to
murder or crime against women, as said by ADR in their study.

Moreover, such instances of publishing all cases against MPs and MLAs have become such a
common phenomena that people don’t even consider it while giving their vote to any party
member.

 No more than 6 percent of the criminal cases against India’s MPs and MLAs ended in
conviction, according to data submitted by the centre to the Supreme Court.
 Of the 3,884 such cases—conviction for which results in a six-year ban from contesting
elections—guilty judgment were pronounced in 38, and 560 were acquitted, the centre
told the Supreme Court on Sept. 11, 2018.
 In 18 of the 28 states, and two of the nine union territories, there were no convictions for
criminal cases against MPs and MLAs; the cases include murder, attempt to murder,
kidnapping, hate speech and criminal intimidation.
 The highest number of acquittals was in Kerala (147 acquittals, eight convictions), Tamil
Nadu (68 acquittals, three convictions) and Bihar (48 acquittals, 0 convictions).50
 The highest number of convictions was in Odisha (10), Kerala (8) and Uttar Pradesh (5).
 The affidavit was submitted during a hearing of a two-year-old public interest litigation,
which demanded a life ban for politicians convicted in criminal cases. On Dec. 14, 2017,
the court ordered the centre to set up 12 special courts to deal with such cases, asking the
courts to start working from March 1, 2018.51

48
India Today, April 19, 2018, last visited on 10th Nov, 2019..
49
Economic Times, Over 4,000 criminal cases pending against sitting and former MPs, MLAs: SC told , (2018),
https://economictimes.indiatimes.com/news/politics-and-nation/over-4000-criminal-cases-pending-against-sitting-
and-former-mps-mlas-sc-told/articleshow/66940130.cms?from=mdr, last visited on 10th Nov,2019
50
Raman Shreya, As Elections Loom, Conviction Rate In Criminal Cases Against Indian MPs/MLAs: 6%, (2018),
https://www.indiaspend.com/as-elections-loom-conviction-rate-in-criminal-cases-against-indias-mps-mlas-6/ last
visited on 11th Nov, 2019.
51
Shreya ram, the quint, September 19, 2018 last visited on 10th Nov,2019.
 CONCLUSION and SUGGESTIONS

For efficient functioning of Parliament and state legislative in India it important that the Member
of Parliament and the member of the state legislative assemblies have discipline among
themselves. There dignity should also be maintained otherwise there will be a raid of other
government organs. Thus, in order to achieve smooth functioning of the Parliament certain
immunities, privileges and powers are vested to the members of the parliament and parliament
itself. Though all these right should be subjected to the fundamental rights as given in the
Constitution. If the privileges, immunities and powers 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. Thus, it is the duty of the parliament not to violate any other rights which are
guaranteed by the constitution. But over the course of year we have seen how these privileges are
violated .  There is really an urgency to get harder on the rules governing such institutions. The
sacrosanct body like Parliament cannot remain safe in the hands of such corrupt people. It
hampers not only the working of this Body but also the faith of the people which they have
reposed upon them. Therefore, it is really needed to take stricter and immediate actions against
such individuals. Moreover, their absolute powers should be curtailed and only the power
necessary to the extent of exercise of their parliamentary should be given and they should be
made accountable for their act. Clear and express provision for their expulsion needs to be
considerate upon. These are public servants and should aim towards catering their service to the
people. Such criminal actions is highly intolerable and against the value. Therefore, it is only
after this that real development of the country can take place.

Also, since the parliamentary privileges are not codified the chances of using the privileges for
one’s own benefit are even more. Thus, The National Commission to Review the Working of the
Constitution (NCRWC) has also recommended that the privileges of legislatures should be
defined and delimited for the free and independent functioning of Parliament and State
Legislatures. Thus, by the codification of privileges, the rule of law will be strengthened and
violation of them will be decreased.
Thus the following suggestions are given below which can amend the misuse of parliamentary
privileges. They are:-

 The privileges and immunities should be codified,

 The members, against whom charges have been proved, should be punished and not
should be protected by immunities given to members of parliament.
 Judiciary should be given some power to intervene in case of abuse of parliamentary
privileges.
 Some limitation should be placed, to check the misuse of the power of parliamentary
privileges .