An Introduction to Parliamentary Privilege

Abstract

The intricate topic of parliamentary privilege is introduced in this study paper. It covers the definition
and history of parliamentary privilege, some of the debates and tensions that have surrounded
parliamentary privilege, and how privilege is seen and expressed in Australia and a few other countries
via the use of significant texts.

The article is organised as follows: the first portion discusses parliamentary privilege's definition,
categories, and relevance while also highlighting speakers' roles and the Supreme Court's position. The
main elements of parliamentary privilege—exclusive cognizance, freedom of speech and debate, and
immunity from civil arrest—are also briefly covered in Section 1 of this article.

In section two, some of the constitutional provisions including commentaries ,Breach of privileges and
issues and tensions surrounding the concept and implementation of parliamentary privilege are
discussed. The Indian Constitution borrows parliamentary privileges from the British Constitution.
Other aspects including parliamentary governance, the rule of law, legislative procedure, single
citizenship, the cabinet system, prerogative writs, and bicameralism are also derived from the British
Constitution. Articles 79 to 122 of the Indian Constitution include, among other things, the privileges of
the Indian parliament. This article gives you the relevant details regarding the rights and privileges the
parliamentary system and the individual members of parliament have.As democratic institutions,
parliaments carry out essential functions that, essentially speaking, fit into three categories: legislation,
representation, and oversight of executive government. Parliaments have various privileges, powers, and
immunities that help them accomplish these goals and maintain the executive branch's transparency and
accountability. The rights, advantages, and immunities possessed by Houses of Parliament and their
Members during their responsibilities are referred to as "parliamentary privileges." These privileges,
exempt from the general law, are designed to give parliamentarians the freedom to carry out their
responsibilities without hindrance or fear of intimidation or retaliation. Despite this, parliamentary
privilege applies to the whole Houses of Parliament and not just to a certain Member.1

DEFINITION

According to Sir Erskine -"Parliamentary Privileges is sum of peculiar rights enjoyed by each House
collectively as a constituent part of High Court of Parliament, and by member of each House
individually without which they can- not discharge their functions, and which exceed those possessed by
other bodies and individuals".2

In the British House of Commons, it is considered to mean the freedom of expression on the floor of the
House and the right to be unarrested in civil actions while the House or any of its Committees is in

1
United Kingdom, House of Lords (2007) 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, p. 199.

2
TREATISE ON LAW, PRIVILEGES, PROCEEDINGS & USAGES IN PARLIA- MENT (London) 1971, p. 6
session, as well as for forty days before and after. Furthermore, it contains the authority of the House to
penalise persons adjudged guilty of contempt of the House, its members individually, or its presiding
officer.
For the sake of preserving its own authority and dignity, each House as a whole has the primary right to
exercise other privileges and immunities, such as the ability to punish for disrespect and the capacity to
amend its own constitution. The fundamental purpose of the individual privileges enjoyed by Members,
however, is to enable them to effectively carry out the collective duties of the House. 3

Enid Campbell provided a second definition of parliamentary privilege in 1966, stating that it refers to
"those rights, powers, and immunities which in law belong to the individual Members and officers of a
parliament and the Houses of Parliament acting in a collective capacity." As stated by Griffith and Ryle:

Even though it is rarely brought up in discussions, parliamentary privilege supports each member of
parliament's standing and power. Without this protection, each Member's ability to carry out their
legislative duties would be significantly hindered, and the House's capacity to challenge the Executive
and serve as a venue for voicing public concerns would also be affected.4

Evolution of parliamentary privileges-

The Government of India Act, of 1919, was the country's first step towards parliamentary rights, albeit
the Bengal Civil Witnesses Act of 1860 had given legislatures the authority to call witnesses. Prior to
the Act of 1919, the duties and authority of the presiding officer in a legislature simply did not extend
beyond directing the conduct of the House's business, maintaining order there, allowing visitors into the
Council chamber or ordering them to leave it, and keeping records of the House's proceedings. In other
words, privileges had no legal or constitutional legitimacy or standing until the Government of India Act
of 1919.

GOVERNMENT OF INDIA ACT,1919-

The Act gave Indian legislators a few privileges. No member of the Central Legislative Assembly could
be held legally accountable as a result of his speech or vote in the house, as it guaranteed their freedom
of speech. Members felt freer to raise voice their opinions outside the House than inside since this
freedom was so constrained. Some of these limitations were established by the House's rules of
procedure for doing business, while others resulted from the presiding residing officer's tougher
enforcement of the rules. Neither the right to be free from arrest nor any authority over punishment was
granted to the legislators.

GOVERNMENT OF INDIA ACT,1935-

The Act of 1935 did not significantly alter the situation. Legislators from the Central Assembly and the
Provincial Councils both adamantly and loudly opposed the lack of privileges between the two Acts, namely
those of 1919 and 1935, during this time. The highly limited and restricted freedom of speech that was
accessible to them did not satisfy their irate and justifiable protest or worry. The British Government of India

3
Erskine May (2004) op. cit., p. 75.

4
Blackburn & Kennon (2003) op. cit., p. 123. The United Kingdom Joint Committee Report on Parliamentary Privilege also
use Griffith and Ryle’s definition. See United Kingdom, Joint Committee on Parliamentary Privilege (1999) Parliamentary
Privilege – First Report, Joint Committee Reports, Session 1998-99, 9 April 1999, HC 214-I, para. 3.
paid little further attention to the issue when the War broke out in 1939, just a few years after the Act of 1935
went into effect, thus obliterating any hope of any compromise being made to the Indian legislators.

It is clear from this that the years 1919 to 1947 saw an intense conflict between Indian legislators and
the British, as well as potentially Indian bureaucracy, in the relatively small but nonetheless significant
and understated realm of legislative privilege. For obvious reasons, the government was extremely
hesitant to compare the status and responsibilities of Indian legislators to those of their counterparts in
Britain. Members of Indian legislatures were not regarded as competent or deserving of the privileges
typically connected with carrying out their duties instead, they were held in severe suspension.
Naturally, legislators in India did not agree with this stance and engaged in a concerted battle to attain
the privileges enjoyed by members of parliamentary democracies generally those of the British House of
Commons.

Indian parliamentarians experienced abuse from individuals, the press, and the government during their
struggle, which ultimately proved to be fruitless in terms of measurable results. However, the fight was
worthwhile since after the natural need for the privileges was stated, it was clear, simple, and expected
that they would be included in the constitution of independent India.

Breach of Privileges and Powers to Punish Contempt

The power to enforce its privileges and to protect itself from insult , indignity or obstruction is itself a
privilege of the house and consist in the power to commit for contempt by a general or unspecified
warrant. As noted by Waugh, one of the unique rights held by parliament to guarantee its proper
operation is the authority to penalise interference or obstruction: Such meddling amounts to contempt of
Parliament. As we saw in the debate above, various privilege authors have referred to parliament as
establishing and having the powers and immunities of a court. In the British context, it is believed that
this capacity is crucial in supporting the legitimacy of parliament's authority.

Nevertheless, parliaments all over the globe claim they have the authority to independently decide on
cases of contempt and privilege violations and to impose punishments. Although the phrases "breach of
privilege" and "contempt" are sometimes used interchangeably, there is an essential distinction, as many
observers have pointed out.89 When parliamentary privileges or immunities are violated, such as when a
parliamentary discussion is called into question during a judicial proceeding, there has been a breach of
privilege. More generally, contempt of parliament can happen without a violation of any particular
authority or immunity of parliament.
Parliaments have used their authority to punish contempt on a number of occasions, however the use of
the incarceration punishment has decreased significantly since the eighteenth century. The New Zealand
House of Representatives fined a television company in April 2006 for the contempt of punishing a
witness.97 According to Waugh, the most recent instance of incarceration in Australia for contempt of
parliament was the Legislative Council of Western Australia in 1995, where the offender disobeyed a
directive.5

5
Waugh (2005) op. cit
Houses of Parliament are also able to punish individual members. The Houses have the authority to
suspend Members, punish liars who testify falsely, and form a committee to look into the veracity of
claims made in violation of parliamentary privilege.

ISSUES

Struggling for rights comparable to those granted by the British. Indian legislators believed that if it
wasn't done and the presiding officers in India received the punitive powers, they (the legislators)
wouldn't be able to defend themselves against the unjustified, motivated, malicious, and unfounded
press and public criticism. And the worries and anxieties they felt were justified. Legislators were
detained on civil and criminal charges while their House was in session, the press frequently disparaged
the House and its presiding officer, and so on, it is perhaps unsurprising that the actual exercise and
practice of parliamentary privilege has been often fraught with conflict and uncertainty.

As a result, questions have been raised regarding the scope and extent of parliamentary privileges, their
degree of qualification or absoluteness, and whether or not members should be exempt from legal action
or criminal punishment for defamation.

Types of parliamentary privileges-

Indian parliamentary privileges are divided into two categories:

Collective Privileges - Privileges that the Indian Parliament as a whole can make use of.
The Indian parliament has the option to publish or reject the reports, discussions, and proceedings.
The 44th Amendment Act permitted the media to broadcast accurate accounts of legislative proceedings,
except for those pertaining to the house's secret session.

 The Indian parliament has the right to keep outsiders out of its sessions.
 The parliamentary privilege also includes the houses' private sessions.
 The two houses have the authority to establish regulations for:
The company practices adjudication of their labour
 In the event of a privilege violation, the parliament may suspend or remove members.
 The parliament is entitled to prompt notice of any member's arrest, custody, conviction,
incarceration, and release.
 The Indian parliament has the authority to launch any inquiries and to have the witnesses called
in.
 The court cannot examine into the activities of the houses and committees of the parliament.
 Nobody can be detained or have a legal process (civil or criminal) served on them inside the
House precincts without the presiding officer's consent, whether they are a member or an
outsider.
Individual Privileges - These are the benefits that are specifically granted to each member of
parliament.
 During the session of the legislature, a member cannot be arrested. Additionally, members cannot
be detained 40 days before or after the session's start or finish.
 Parliamentarians have a right to free expression inside the chambers. They are not subject to any
legal action as a result of their statements made in the parliament or its committees. However, it
is controlled by the guidelines for such dwelling arrangements.
 They are exempt from serving on juries. When Parliament is in session, they have the option to
both declines to testify and show up as a witness in a matter that is still proceeding in court.