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Legislative privileges In India

Updated: Apr 4

At the heart of legislative privileges lies the need to protect lawmakers from being hindered by others while performing their crucial functions. This protection primarily shields them from unwarranted interference from the executive, judiciary, and individuals outside the legislature.

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legislative privileges in India

Historically, such privileges emerged in medieval England as a way for legislators to resist arrest or prosecution for things said within the chamber. This extends to a legislature's control over publishing its proceedings, as unauthorized publication could expose members to unwanted scrutiny and impede their work.

However, these privileges haven't solely served as shields. Historically, they have also been used punitively, with non-members facing imprisonment or fines, and even members facing removal.

In a representative democracy, the extent of these privileges is inherently tied to ensuring free and open debate within the legislature. In India's post-independence era, invoking these privileges has been a source of controversy, often due to the ambiguous nature of the relevant constitutional provisions. This ambiguity has fueled calls for a more clearly defined legal framework surrounding such privileges

British Roots Indian legislatures inherited British practices, using privileges to shield themselves, especially from arrest, under British rule. The 1935 Government of India Act laid the groundwork. The Constituent Assembly debated codifying them, but ultimately Articles 105 and 194 granted broad privileges, mirroring the House of Commons, with the power to define them further. 

Constitutional Provisions

In the Constitution, Article 105 deals with the powers and privileges of the

Houses of Parliament, their members, and committees. Article 194 is the corresponding provision for State legislatures and includes identical language.

Clause (1) assures freedom of speech inside the legislature and Clause (2) explicitly protects the act of speaking and voting by members inside the legislature from judicial proceedings of any kind. Clause (2) further pre-empts liability for the publication of matters connected to legislative business, provided

the same is done under the authority of the chamber.

Much disputation has arisen from Clause (3), which empowers Parliament to define its ‘powers, privileges and immunities’ in other respects. For ascertaining the existence of privileges, the original language of Clause (3) stated that they ‘shall be the same as those of the House of Commons of the United Kingdom as on the coming into the force of the Constitution’.

Clause (3) ignited controversy, linking privileges to those of the House of Commons on India's Constitution Day 1950. Though amended, courts still draw from British precedents to determine permissible uses, acknowledging inherent differences in Indian governance.

Fundamental Right and Legislative privileges in India

Initial Approach: The landmark case, MSM Sharma v Sri Krishna Sinha, arose from a newspaper publishing critical remarks made by a legislator about the Chief Minister. Though expunged from official records, the journalist included the name of the former minister allegedly involved in shady appointments.

The Assembly invoked "breach of privilege," accusing the newspaper of hindering legislative functioning. The Supreme Court's majority, citing English precedents, upheld the Assembly's right to control publications. They argued for safeguarding against inaccurate reporting that could disrupt proceedings, even at the cost of some restriction on the general right to free speech.

However, a strong dissent emerged, emphasizing that legislative privileges cannot override fundamental rights like free speech. Justice Subba Rao argued that expunging information doesn't erase its existence, and privileging legislatures above citizens was unfair. He questioned the necessity of invokation, suggesting potential misuse and alternative remedies like defamation suits.

Private Act of Legislator not covered: in Case of Dr Jatin Chandra Ghosh v Hari Sadhan Mukherjee, Legislator Dr. Jatin Chandra Ghosh published questions deemed inadmissible by the Assembly in a local journal. He claimed legislative immunity but courts rejected his plea. This case highlights that legislative privileges have boundaries and don't extend to personal actions, even if stemming from legislative work. 

Keshav Singh Case:

The Keshav Singh case of 1964 is a landmark case in Indian constitutional law. It involved a clash between the legislative privileges of the Uttar Pradesh Legislative Assembly and the fundamental rights of an individual, Keshav Singh.

The Facts:

  • Keshav Singh circulated a pamphlet criticizing a serving legislator.

  • The Assembly Speaker issued a breach of privilege notice against Singh and later arrested him for seven days.

  • Singh's lawyer challenged the arrest in the Allahabad High Court, which ordered his release.

  • The Assembly retaliated by issuing breach of privilege notices against the two judges who ordered Singh's release, Singh, and his lawyer.

The Legal Issues:

  • Can the legislature invoke privileges against acts committed outside the House?

  • Can courts review the legislature's exercise of privileges?

The Supreme Court's Decision:

  • The Supreme Court held that the Assembly could not arrest the two judges and Singh's lawyer because their actions were not directly connected to Singh's initial act of contempt.

  • The Court also held that courts can review the legislature's exercise of privileges to ensure that they are not used to violate fundamental rights.

Significance of the Case:

The Keshav Singh case is significant because it established the following principles:

  • Legislative privileges are not absolute and are subject to judicial review.

  • The legislature cannot use its privileges to violate fundamental rights.

  • Courts have the power to review the legislature's exercise of privileges to ensure that they are not used unfairly or arbitrarily.

The case also highlights the importance of balancing the legislature's need to protect its dignity and functioning with the individual's right to freedom of speech and expression.

Legislative privilege and Corruption

In PV Narasimha Rao v State, Prime Minister PV Narasimha Rao faced a precarious situation in 1993. His Congress party, while leading the Lok Sabha, lacked a majority. Amidst widespread criticism of the government's handling of religious violence, a no-confidence motion loomed. Facing potential defeat, Rao and his allies were accused of bribing MPs from smaller parties to secure their votes or abstentions. The Central Bureau of Investigation (CBI) sought to prosecute the accused, but they claimed protection under Article 105, which grants legislative privileges.

  • In a controversial decision, the Supreme Court split on the issue. The majority, led by Justice Bharucha, determined that accepting bribes was immune from prosecution due to its close connection to voting, a protected legislative function. However, they ruled that offering bribes remained punishable.

  • This distinction, criticized by Justice Agarwal in his dissenting opinion, drew widespread condemnation from media and experts. The judgment, seen as shielding corruption under the guise of privileges, even prompted calls for amending the Constitution to address the loophole.

Reversed of PV Narasimha Judgment

A land Mark change was introduced dealing with corruption in parliement by SC in a 2024 Judgment Sita Soren v Union of India

In 2012, Sita Soren, a member of the Jharkhand Legislative Assembly from the Jharkhand Mukti Morcha (JMM) was accused of accepting a bribe. An independent candidate had allegedly asked her to cast a vote in his favour in the Rajya Sabha Elections. However, as there was an open ballot system, she ultimately cast her vote for a candidate of JMM.

Soren approached the High Court of Jharkhand seeking to quash the criminal charges filed against her under the Prevention of Corruption Act, 1988. She argued that as an MLA, she enjoyed the protection under Article 194(2) of the Constitution.

She relied on a 1988 decision of the Supreme Court, P.V. Narasimha Rao v State, which had held that lawmakers enjoy immunity for their speech and votes in the House as part of the parliamentary privileges under Article 105(2).

Privileges of the members of houses of Parliament

  1. Article 105(2) of the Constitution stipulates that no member of Parliament shall be held liable for anything said,  or for any vote cast in the Parliament.  

  2. Article 194(2) extends this privilege to members of state legislatures. It is under this provision that Soren sought protection. 

Raja Ram Pal v Speaker, Lok Sabha

In an explosive expose, a TV sting operation dubbed "cash-for-queries" revealed several MPs accepting bribes to ask questions in Parliament. The scandal sparked swift action, with both houses constituting committees to investigate. Ten Lok Sabha MPs and one Rajya Sabha MP faced expulsion based on video evidence. Two other Rajya Sabha members were also expelled for separate corruption charges.

These expelled MPs challenged their removals in the Supreme Court, arguing that only the specific conditions outlined in the Constitution, like convictions under anti-corruption laws, could lead to disqualification. They questioned the fairness and transparency of privileges committees compared to judicial processes.

The Supreme Court, divided in its opinion, ultimately sided with the legislature. 

  • The majority emphasized the additional power of parliamentary privileges to address misconduct that tarnishes the institution and disrupts its functioning. 

  • They differentiated expulsion through privileges (temporary) from disqualification (permanent) under specific constitutional terms. 

  • The dissenting judge, however, maintained that expulsions should adhere to the defined disqualification rules in the Constitution.

Interestingly, the Court also reaffirmed its limited power to review parliamentary privileges, established in the Keshav Singh case. While acknowledging legislative autonomy and procedural immunity, the Court left room to intervene in cases of "substantial illegality."

This point was significant as both Lok Sabha and Rajya Sabha Speakers refused to be part of the legal proceedings, asserting complete discretion in internal matters.

The Raja Ram Pal case, while upholding the legislature's right to self-correction through privileges, also highlighted the ongoing tension between legislative autonomy and judicial oversight. The conflicting narratives regarding the scope of privileges and the lack of consensus on judicial involvement leave open questions about the appropriate balance between these competing interests.

Conflicting Rights and Murky Practices

The Indian Supreme Court's approach to legislative privileges has been marked by inconsistency and confusion, particularly when these privileges collide with fundamental rights. This is evident in two distinct clusters of cases, each raising crucial questions about the balance between legislative power and individual liberties.

Clashing with Fundamental Rights of Outsiders:

  • The first cluster deals with situations where legislative privileges curtail the fundamental rights of non-members, primarily freedom of speech and expression. The landmark case of Search Light I upheld the supremacy of privileges over press freedom, allowing legislatures to restrict reporting of their proceedings. 

However, the later case of Keshav Singh hinted at a possible shift, suggesting "personal liberty" as protected from unfettered privilege use. This apparent contradiction, along with the lack of clear priority between various rights, has created significant ambiguity.

Internal vs. External Scrutiny of Corruption:

The second cluster concerns the use of privileges in response to corruption among legislators. The infamous PV Narasimha Rao case drew sharp criticism for seemingly shielding lawmakers from bribery charges. This was followed by Raja Ram Pal, where privileges were used to expel a corrupt member, showcasing their potential as a tool for internal accountability. 

  • However, concerns remain about the fairness and effectiveness of such internal proceedings, given the potential for bias and political manipulation. Amarinder Singh further narrowed the acceptable use of privileges, emphasizing their restricted application to direct obstruction of legislative functions.

Key Questions and Unresolved Tensions:

The overarching question that emerges from these cases is whether criticism of lawmakers, even harsh or negative, can be deemed an obstruction justifying the use of privileges. This directly links to the fundamental right of free speech. Additionally, the debate hinges on whether internal legislative measures against corruption are sufficient or whether external judicial scrutiny remains essential.

The Supreme Court needs to take a definitive stance on the scope and limitations of legislative privileges. Balancing the legislature's need to function effectively with the protection of fundamental rights and due process remains a crucial challenge. A clear framework is necessary to ensure accountability for both external and internal actors, upholding the principles of a just and democratic society.

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