Authored by Suraj Sharma First year law student from AIL, Mohali.
Article 105 of the Indian Constitution lists legislative privileges. Members of Parliament are not liable for words or conduct done while carrying out their responsibilities. Membership gives the house privileges. The rights are removed as soon as he stops being a member. In order to fulfil their constitutional obligations, members require privileges. The operations and functions need to be done in a regulated and organised manner.
FREE SPEECH IN PARLIAMENT
Parliament members have the right to free speech and expression. Free and fearless discourse is at the core of our parliamentary system, therefore everything they say is immune from legal responsibility and cannot be prosecuted in a court of law.
Eliot’s Case The House of Lords realised that it is “a false assumption” to believe that the courts had jurisdiction over the accusation of seditious utterances, and they thus reversed the judgement of the Court of King’s Bench.
A citizen’s freedom of speech and expression is guaranteed by Article 19(2), which differs from a parliamentarian’s freedom of speech and expression. Article 105(1) of the Indian constitution makes it certain. The freedom is subject to laws and orders that control parliamentary procedures.
Members and non-members alike have a right to speak in the house. example, India’s attorney general for this reason, everyone has the freedom to participate in the debate, without fear or favour.
In order to obtain immunity, you must observe certain limits.
The Constitution guarantees the freedom of expression, subject to parliamentary rules and processes, as mentioned in Article 118. Members of Parliament cannot openly criticise the justices of the Supreme Court and the High Court. Even if this occurs, it is for parliament and the courts to decide. Claiming immunity or privilege is impossible for anybody outside of the house processes.
During the 40-day period preceding and following house adjournment, members are free from arrest in any civil case. As members of parliament cannot be imprisoned outside of the parliament’s limits until their house approves it, they are able to do their responsibilities without interruption.
If a parliament member is detained, the chairman or speaker should be notified. However, an ESMA member can be arrested off-site, under the Preventive Detention Legislation, the Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any other similar act.
FREEDOM FROM GIVING TESTIMONY
Parliament members have privileges and are excused from being a witness in court. They are allowed to do their responsibilities freely, without interruption from the court.
POWER TO GOVERN PROCESS
Art. 118 pertains to how each house of parliament does its business. The Rules of Procedure and Conduct of Business for the Lok Sabha are often known as the Rules of Procedure and Conduct of Business in the Council of States.
The privileges that parliament members enjoy jointly:
RIGHT TO KEEP PROCEEDINGS PRIVATE
It is specified in Article 105(2) of the Constitution that no one shall be held responsible for publishing reports, conversations, and the like, related to parliamentary house members, unless such communications are deemed to be in the nation’s paramount and national interest.
Any proceedings reported in only part and completed with malicious intent are not protected. Protection is given only if the home procedures are followed. Concealing erased proceedings and/or exposing inaccuracies or misrepresentations is deemed an affront to the House.
RIGHT TO REFUSE ENTRY
Members of the house can exclude non-members of the house from the proceedings. The freedom to open and fair conversation in the house is crucial. Any reported breach results in an admonition, censure, or jail.
Anyone who violates or disobeys the house can be punished, whether they are guests or members of the home. When a house member commits a breach, they are expelled from the home.
The power of the house is upheld through this prerogative, which is sometimes referred to as the “keystone of parliamentary privilege.” This right is upheld in the majority of situations. Anyone and everyone can be held in contempt while the house is in session.
THE RIGHT TO SELF-GOVERNANCE
A home has the liberty to conduct itself in whichever manner it chooses. No authority from the other house can intervene in the control of the internal procedures of each house. Article 118 of the Constitution empowers the house to regulate procedures, and they cannot be challenged in court on the grounds that the house is not following the norms laid down in Article 118. This broad provision and the regulation is not obligatory upon the house. They may vary from or alter the regulation at any moment.
MISCONDUCT OR DISRESPECT TOWARDS THE HOUSE
If the breach committed is significant, the penalty might be administered in the form of incarceration of any member or person.
If the contempt or breach has been of economic offence and any financial benefit has been made from the incident, the parliament can impose a punishment on the offender.
On top of that, parliament can prosecute the perpetrator, as well.
If a contempt is committed by parliament members, they are subject to the penalty of the house as well as suspension from the house.
PARLIAMENTARY PRIVILEGES CODIFICATION
As members of parliament, our Indian parliament possesses absolute powers. However, there is misuse of their rights privileges since they have little restrictions. It is only up to them to decide if there has been a violation, and what the appropriate penalty should be.
They hold authority well in excess of the rights of the people. As a result of the lack of a formal definition of privileges, they have obtained an indeterminate level of authority. They are exempted from arrest for being protected from civil arrest for 40 days before, after, and during the session. Few parliamentary privileges have been enacted.
Generally, members reject the move, as then it will be subject to the foundational rights and susceptible to judicial scrutiny. Vendatachaliah advocated for defining and delimiting the advantages that the legislature enjoys for doing its job independently. According to this reasoning, codification would constitute interference with the court, as cases would be presented in the courtroom. Non-codification of privileges has given greater authority to the members. However, now it is time to codify and clarify the privileges and mandates necessary for parliament to work without controversy.
APPEAL AGAINST PARLIAMENTARY PRIVILEGES
It is tasked with the task of protecting basic rights in India. In any event, members of Parliament are against having the court engaged. Because of this, the judiciary must not remain silent if one of our fundamental rights is infringed because of advantages or if criminal responsibility is evaded.
NATURAL JUSTICE AND PARLIAMENTARY PRIVILEGES
As a recent Supreme Court ruling about Algaapuram R. Mohanraj v Tamil Nadu Legislative Assembly said:
Any contradiction between privileges and fundamental rights will be addressed through harmonious building. Judges are fully aware that they do not have jurisdiction over legislative affairs, yet it is important to the community that violations be addressed by the court.
The privileges are granted to the members of the parliament for their smooth operation. But these rights should always adhere to the basic right, since they are our representatives and our welfare work. Members should also not misuse their powers and use them wisely.