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Parliamentary Privileges
by K.C. Joshi, *
LL.M. (Lucknow)

Cite as : (1970) 2 SCC (Jour) 10

The decision of the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy,2 dismissing the appeal is a happy end of an apprehended conflict of jurisdiction between Parliament and the Supreme Court particularly when the Speaker had directed the five Members of Parliament to ignore the notices (in fact these were notices of lodgement of petition of appeal) issued by the Court. But it is not the final solution and it is better to examine the problem in the constitutional perspective.

In the changed political phenomenon after the 1967 elections a tendency has grown in some quarters which views one organ of the State as superior to the other. Every organ of the State — the Legislature, the executive and the judiciary — has its own place and role under the Constitution. It is wrong to presume supremacy of one over the other. In fact, it is the Constitution which is paramount. The aspirations of the Constitution are to secure to all citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and fraternity, assuring the dignity of the individual and the unity of the nation. All the organs of the State are enjoined to promote and secure these aspirations for the people. The ultimate source and sanction of the Constitution is the public — the people of India.

The Constitution envisages 'mutual independence' among the basic organs of the State. To assure this mutual independence, it makes provisions which debar courts from enquiring into the proceedings of Parliament3 of or a State Legislature4 on the grounds of alleged irregularity of procedure: parliamentary privileges5 and restricting discussion in the Legislature6 and in Parliament7 in respect of judicial conduct.

The provisions dealing with parliamentary privileges and immunities are given in Articles 105 and 194 of the Constitution. Clauses (1) and (2) of these Articles deal with freedom of speech and expression and right to vote in the Houses and Committees thereof. Clause (3) says that the other powers, privileges and immunities of the members and of each House, "shall be those of the House of Commons" unless defined by law. This provision has given rise to problems. If we look at the origin and rationale of the privileges of the House of Commons in England, we find that they are not exactly the same as in India.

As Eraskine May points out the House of Commons was a weaker body and "had a fiercer and more prolonged struggle for the assertion of their own privileges not only against the Crown and the Courts, but also against the Lords".8 The privilege was a part of "King's peace" enjoyed by all the King's subjects.9 In fact, they served as a shield in the fight of people and their representatives against the monarchy through the House of Commons. The basis of immunity from the judiciary also sprang from the same roots. The Courts like King's Bench or the Court of Star Chamber were used by the King to safeguard his own interests. Moreover, till today, when the British Parliament is omnipotent, at the commencement of every Parliament, the speaker of the House of Commons presents a petition to the Crown asking for rights and privileges of Commons. This practice itself shows that the fight for privileges was against the Crown and its royal courts.

In India, there is no question of any struggle between the executive and the courts on one hand and the Legislature on the other. We have a written Constitution unlike the British who conduct their governmental business on the basis of conventions. The President is elected and there are provisions dealing with his powers.10 The judiciary is to interpret the Constitution11 and to defend the citizen against the State.12 Thus, the Supreme Court of India has to play its role cautiously, impartially, and fearlessly.

Democracy dies the moment the confidence of the masses in the judiciary is shaken. Rule of law and democracy go together and rule of law and independence of judiciary are the soul and body of democracy.13 If this distinction between the United Kingdom and India is realised, many of the problems which are apprehended, would disappear.

Coming down to the particular privilege of Parliamentarians, viz. freedom of speech, clause (2) of Article 105 lays down that "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 Committees thereof. . . . "

The privileges are given to the members individually and collectively to enable them to discharge their functions effectively. While parliamentary privileges are essential for the proper functioning of that august body, it is equally important that in extending these privileges the constitutional equilibrium must be maintained. Freedom of speech in Parliament or in a State Legislature is subject to the provisions of the Constitution and the rules and standing order of the House.14 The rule-making power is again subject to the provisions of the Constitution.15 The view of the court that "anything" used in Article 105(2) "includes everything"16 should not be misunderstood or misinterpreted as giving the Legislators an unrestricted licence to say anything. Thus liberal interpretation taken to its logical absurdity would have undesirable consequences. Does the freedom to say everything logically extend to anything or everything done in the House? Therefore, while the courts should be excluded from judicially reviewing the freedom of speech in a Legislature, the members have a commensurate duty to exercise self-restraint even in difficult moments. They must always keep in mind their special position and the position of the august legislative body. They must at the same time not forget their representative character. They are elected by the people to mitigate their grievances and not to claim superiority over their ultimate masters. The rules of procedure and conduct of business in the Parliament and the Legislatures provide for parliamentary decorum and decency and it is the onerous duty of the Presiding Officers to see that the freedom is used properly.

* The Indian Law Institute, New Delhi. Return to Text

  1. C.A. No. 2572 of 1969, decided on May 8, 1970. Return to Text
  2. Art. 122. Return to Text
  3. Art. 212. Return to Text
  4. Arts. 105 and 194. Return to Text
  5. Art. 211. Return to Text
  6. Art. 121. Return to Text
  7. Eraskine May's Parliamentary Practice (Seventeenth Edn., 1964). Return to Text
  8. Ibid. Return to Text
  9. See Part V of the Constitution. Return to Text
  10. Arts. 132 and 228. Return to Text
  11. Arts. 32 and 226. Return to Text
  12. See also M.C. Chagla, The Spirit of Democracy, the Indian Express, New Delhi of April 5, 1970. Return to Text
  13. Arts. 105(1) and 194(1). Return to Text
  14. Arts. 118(1) and 208(1). Return to Text
  15. Supra note 2. Return to Text
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