INTRODUCTION
The word ‘privilege’ can be defined as an advantage which a person has over others. It is an advantage conferred ‘over and above the ordinary law2. Black’s Law Dictionary defines privilege as a particular and peculiar benefit or advantage enjoyed by a person or company or class beyond the common advantages of other citizen, an exceptional or extraordinary power or exemption.
Article 105 and Article 194 of the Indian Constitution deals with powers, privileges and immunities enjoyed by the Members of the Indian Parliament and State Legislative Assemblies respectively.
The Constitution has guaranteed wide powers to the members individually as well as to the House collectively. The privileges can be numbered as
(1) Freedom of speech.
(2) Freedom from arrest.
(3) Right to exclude strangers.
(4) Right to regulate internal proceedings.
(5) Right to regulate members or Outsiders for Contempt of House.
(6) Right of House to regulate its own Constitution.
Nature of privilege
According to Erskine May, “Parliamentary privilege is the sum of certain rights enjoyed by each House collectively… and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.
Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its members.
Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its members and the vindication of its own authority and dignity.
Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by members.
“When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament.
Each House also claims the right to punish contempts, that is, actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its members or its officers.”
Extent of privilege
- With respect to freedom of speech, it was held in the case of Keshav Singh that “Freedom under Arts.105 and 194 is wider that Art.19(1)(a). If not no need to confer it again in Arts.105 and 194”.
- With respect to freedom of speech and political defections, it was held in the case of Kihoto Hollohan v. Zachillu that freedom of speech and freedom to vote in the House does not extend to unprincipled and unethical defections.
- On analysis of freedom to publish the proceedings of the House, we can find that freedom of press must yield to privilege of House to prohibit the publication of debates and proceedings within the House. It was held that only authorised publications are permitted to publish.
- Later As per Article 361 A it was held that no person shall be liable for making substantially true report of any proceedings of either House, except for secret sitting of the House.
- With respect to matters concerning the right to life and personal liberty, it was held in the case of In Re Presidential Reference that “any procedure employed by the House by which a person is deprived of his life and personal liberty must also satisfy the requirement of Art.21 that it must be just, fair and reasonable”.
- Similarly, the House does not have power to commit a judge or counsel who is handling the case involving parliamentary privilege. Any such practise would enforcement of their fundamental rights,
- The power to punish for contempt does not extend to issuing a warrant to commit a judge who entertains a writ petition for enforcement of the fundamental rights of a citizen challenging the exercise of legislative privilege.
- Similarly, with respect to case of counsels it was held in the case of Kesav Singh that “The House cannot pass any strictures or penalties, in the exercise of contempt jurisdiction, against a lawyer representing a citizen alleging a breach of fundamental rights arising out of the exercise of a privilege of the legislative Houses”.
Scope
The scope of parliamentary privileges in India, as well as in England and America, is examined, particularly with respect to the jurisdiction of the courts. The question whether courts can interfere with the power of a Legislature to commit for its contempt arose most dramatically in the Keshav Singh’s case. The court held that the conduct of the judges could not be discussed in any House under Art 211 of the Constitution. The court also held that the right of citizens to move the judicature and the right of advocates to assist that process must remain uncontrolled by Art 105(3).
This is necessary to enforce of the fundamental rights and to sustaining the rule of law in this country.