PARLIAMENTARY PRIVILEGE

SATYA PRAKASH
ADJUNCT FACULTY
SYMBIOSIS LAW SCHOOL, NOIDA
INTRODUCTION

 The main function of lawmakers is to discuss and debate matters of

national importance and make laws without fear or favour.
 The Indian Constitution confers certain special rights on Parliament and
state legislatures to enable the lawmakers to effectively perform their
functions and discharge their duties without any hindrance.
 These rights are undefined and it’s difficult to say with certainty as to
what constitutes parliamentary privilege and what constitutes its breach.
 However, its understood to include free speech with immunity from
proceedings, right to control the proceedings and publication of
parliamentary proceedings and right of each House to punish its members
for their conduct in the House.
 It also includes right to exclude strangers from the House and protection
of witnesses, petitioners and their counsel who appear before the House
or its committees.
WHO ENJOYS PARLIAMENTARY PRIVILEGE
 The headnote of Article 105 makes it clear that
Parliamentary privileges are available to”
Both the Houses
Members of Lok Sabha and Rajya Sabha
Parliamentary Committees
 Article 105 (1) declares that “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.”
 Article 194 is an identical provision which confers power
of privilege on state assemblies, their members and
committees.
MAIN PROVISION IS ARTICLE 105(2)
 Article 105(2) reads, “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.”
 First part of Clause (2) of Article 105 grants immunity to members
from any proceedings in court for “in respect of anything said or any
vote given by him in Parliament or any committee thereof.”
 The Second part declares that “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.”
 Article 105(3) authorises Parliament to make laws to define
parliamentary privileges.
THREE CONSTITUTION BENCH VERDICTS
 1965: In Keshav Singh’s case, a Constitution Bench resolved a
constitutional crisis arising out of a conflict between the Allahabad High
Court and the Uttar Pradesh Assembly Speaker.
 Led by the then CJI P Gajendragadkar, the Constitution Bench held that
the Supreme Court and high courts have powers under Article 32 and
Article 226 respectively to examine a decision taken by a legislature or a
penalty imposed by it on the ground of violation of fundamental rights of
citizens.
 1998: A five-judge SC Bench ruled in the JMM MPs’ bribery case that a
lawmaker was immune to prosecution even if he/she took money to vote
on the floor of the House
 2007: Another five-judge SC Bench ruled in Raja Ram Pal’s case that those
who took money to ask questions in Parliament were liable to be expelled
permanently
THE UNRESOLVED QUESTION
 Which one of the two wrongs amount to a crime for lawmakers—taking bribe for
voting on the floor of the House or accepting money for asking questions in
Parliament/Assembly?
 For a reasonable person of average prudence, an obvious answer will be “both”.
 But it’s not that simple as the Supreme Court has complicated the issue by
delivering contradictory verdicts on such a vital issue affecting the body politic of
India.
 Sita Soren, who was an MLA in the Jharkhand Assembly, is being prosecuted for
allegedly taking bribe for voting in the 2012 Rajya Sabha poll. She is accused of
receiving bribe from a Rajya Sabha candidate for casting her vote in his favour, but
she instead voted in favour of another candidate.
 She has claimed protection under Article 194(2)—which is identical to Article
105(2)—and applies to state legislators.
 In March 2019, a three-judge Bench headed by the then Chief Justice of India
Ranjan Gogoi referred the question to a larger Bench, terming it “a matter of
substantial public importance” having “wide ramifications”.
THE PROBLEM AND POSSIBLE SOLUTION
 Parliament has in its own wisdom chosen not to define it, leaving
scope for its misuse.
 State assemblies have often used their power of privilege against
journalists for reasons that may not be justified.
 In the absence of a clear definition of parliamentary privilege, one
will fall back on judicial pronouncements, particularly Constitution
Bench verdicts, for guidance.
 But unfortunately, contradictory Constitution Bench verdicts have
made things worse. Sita Soren has given an opportunity to the
Supreme Court to reconsider its verdict in Rao’s case and make it
compatible with the one in Raja Ram Pal’s case.
 After all, a constitutional interpretation can’t be bereft of morality
to the extent that it justifies taking of bribe.