Parliamentary Privileges

Sir T. F. May defined Parliamentary Privilege as:

“Some of the peculiar rights enjoyed by each House collectively as a constituent part of the Parliament and by the members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.”

The constitutional provisions regarding the prerogatives of the state assembly and the Parliament are the same. Articles 105 and 194 provide for the privileges of the Indian legislature. Article 105 relates to Parliament, and Article 194 relates to state legislatures. The Constitution clearly mentions two privileges (a) the freedom of speech for each state assembly and legislature, and (b) the right to publish its proceedings.

Privileges mentioned in the constitution

  1. Freedom of speech in Parliament

The participants of the parliament had been vested with the freedom of speech and expression. As the very essence of our parliamentary democracy is a loose and fearless discussion, something stated via way of means of them expressing their perspectives and mind are exempted from any legal responsibility and can’t be attempted in the court of law.

This freedom of speech, however, should be according to the constitutional provisions and subject to guidelines and procedures of the parliament.

  • Freedom from arrest

Members must not be arrested or detained in civil proceedings 40 days before and 40 days after the meeting of Parliament. If a member of parliament is arrested during this period, he must be released to visit the parliament. The competent authority must notify the chairman or speaker, the reason for the arrest. This privilege is for civil arrests and does not apply to arrests or detentions for crimes, ignorance of court, or preventive detention.

  • Freedom from appearing as a witness

Members have the privilege to be exempt from testifying in court. They have the liberty to attend the house and perform their duties completely freely without interference from the court.

  • Right of Publication of its Proceedings

Article 105(2) provides-“No member of Parliament shall be liable to any proceeding 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”. The protection provided in this article does not apply to publications made by a private person without permission.

  • Right to prohibit the publication of proceedings

According to Article 105(2) of the Constitution, under the supervision of members of the House of Representatives, no one can be held responsible for publishing reports, discussions, etc. Communicating procedures to the public so that they understand what is going on in Parliament is very important for the country.

However, any specific part of the process or publications published out of malicious intent are not protected. Protection is granted only if it reflects true proceedings. If remote trials or discovery false statements or misinformation is found, it is considered a violation of privileges and disrespect of the house.

  • Right to exclude strangers and hold secret sessions

Members of the House have the power and right to exclude outsiders who are not members of the House from the procedure. This is the basic right to ensure free and fair discussions in the House; if any violations are reported, the offender can be punished in the form of reprimand, condemnation or imprisonment.

The Indian Parliament enjoys the right to hold secret meetings to discuss important issues, but now secret meetings are only held under special circumstances, because voters need to know what their representatives are doing in the legislature.

  • Right to regulate the internal affairs of the house

Each house has the right to regulate its proceedings and has its own jurisdiction over its house. The other house has no power to interfere with the regulation of its internal procedures. The house has the right to abide by its rules of procedure and shall not be challenged in court for failing to comply with the rules set out in Article 118. The Supreme Court also ruled that this is a general rule and that the rule is not bound by the house. If necessary, they can deviate or change the rules anytime.

Relationship between Parliamentary Privileges and Fundamental rights

Under Art. 105(1), freedom of speech for the members of parliament is granted, while, under clause 2 of the same article, it stipulates that no members are responsible in any proceedings before the court for anything that has been said or every vote cast in parliament or any committees. In addition, when reports, documents, votes or procedures are released by the Parliament or its agencies, no one can be held responsible for it. The same is stated in Art. 194, where members of the legislature of a state is referred instead of members of parliament.

Article 19 (1) (a) and Article 105 of the Constitution both deal with freedom of speech; Article 105 applies to parliamentarians without reasonable restrictions; however, Article 19 (1) (a) applies to reasonable restrictions to citizens.

Article 105 is an absolute privilege given to the participants of the parliament however this privilege can only be used in parliamentary premises, not outside.

Under Article 105(3), Parliament can pass a law defining its privileges, and any law that violates a fundamental right is invalid. If a state’s legislature stipulates its powers, privileges, and immunities under clause 3, the law must fall within the scope of Article 13, and if it violates fundamental rights, the law is invalid.

Another point is that parliamentary privilege to right to prohibit the publication of proceedings hinders the fundamental right of Freedom of Speech and Expression as the freedom of press comes within the latter right.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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