Parliamentary and legislative privileges are some powers given to the members of the both Houses of Parliament and State Legislature. The President cannot avail these privileges. Art 105 and Art 194 of the Constitution grant sanction to these privileges to parliamentarians and members of state legislature respectively. They have the power to make a rule for themselves, freedom from being arrested, right to prohibit publications of its proceedings, hold secret meetings, exclude strangers from attending proceedings, punish the members or outsiders for contempt and right to regulate its internal affairs. The privileges are provided to the parliamentarians so that issues of good governance can be addressed quickly and effectively, without fear of scrutiny.
Freedom of Speech v. Parliamentary Privileges
There has been a controversy between the fundamental right guaranteed under Art 19(1)(a) and the absolute power given to the members of Parliament. The parliamentarians have the power to prohibit publication of its proceedings which is restrictive of the freedom of the press. Parliamentary privileges restrict the right to freedom of speech and expression of the citizens of India. The press must be cautious while publishing the proceedings and reports of Parliament or conduct of the members. There are some instances when the press can be held liable for the contempt:
- Publishing any matter regarding the character of a member
- Pre-mature publication of proceedings
- Mis-representing or misreporting proceedings of the House
- Reporting expunged portion of proceedings
Although the freedom of press is subject to limitation by the privileges if fundamental rights are violated, there is a threat to democracy. For this reason, freedom of press must be protected. The citizens choose their representatives to govern them, so they must be informed of their actions. This part is done by the press, so free press is necessary for democracy. It has been held in various cases that when there is a conflict between the privileges and the fundamental rights, rights should be given the priority and upheld in all manners.
Judicial review on Fundamental rights and parliamentary privileges
Part 3 of the Constitution guarantees Fundamental rights, some of which are defined under Art 19(1)(a) subject to reasonable restrictions under Art 19(2). Whereas the parliamentary and legislative privileges given under Art 105 and 194 are absolute in nature. Art 105(3) and 194(3) states that parliament must from time to time, define the powers and immunities of MPs and MLAs.
The judiciary is regarded as the guardian of the Constitution and it cannot sit quietly when Fundamental rights of citizens are being violated due to the exercise of parliamentary privileges. Indian judiciary is given the responsibility to protect fundamental rights. It would be childish to expect that legislators will give up their powers so easily and would be ready to codify them, so judiciary has to play its role. In Keshava Singh case, the SC has observed that parliamentary privileges are subject to Fundamental rights and if there arise any conflict between them, it must be resolved through harmonious construction (every statute should be read as a whole and interpretation consistent of all provisions of the statute must be adopted).
The Supreme court has opined in Gunpati Keshav Ram Reddy v. Nafisulhasan and State of UP, that parliamentary privileges cannot supersede the fundamental rights of the citizen.
The legislators enjoy supreme and absolute powers where they can determine their privileges, what would constitute their breach and what will be the punishment for that breach. But such unlimited power is against the spirit of Constitutionalism.
The framers of the Constitution have left a large portion of these privileges open-ended i.e. there is no limit or end to these powers. The parliamentarians and legislators are empowered to maintain the dignity and authority of the House but it has been noticed that these privileges have caused much harm than good. There has been misuse of these unlimited powers from time to time as the legislators are empowered to decide their own issues.
Due to the lack of a boundary or express provision to limit these privileges, they have gained the infinite character. There is no comprehensive law to delimit these powers.
Constitutional Review Commission headed by J. M.N. Venkatachaliah had recommended to define and delimit parliamentary and legislative privileges for the free and independent working of legislation. But the fact is that codification has been opposed by the legislators only. With codification, their powers will be subjected to Fundamental rights and judicial scrutiny. Moreover, the expansion of powers as per the need of legislators would not be possible. The privileges have been used as a weapon against reporters, journalists and writers.
Once the parliamentary privileges are codified, they will be regarded as “law” under Art 13(2) of the Constitution. As a result, they can be declared null and void, if violative of the fundamental rights.
It can be established that the parliamentary and legislative privileges have done more harm than good. The members of the Houses have abused these powers to cover up their acts of corruption, seek protection from the offences of bribery, defamation etc.
The current state of affairs and the conflict between the fundamental rights and parliamentary privileges, would not reach an end until they are codified and defined. Such codification would not only put a stop to the arbitrary use of powers by parliamentarians but also provide greater autonomy to the press, safeguarding their rights and resulting in a more transparent and accountable government.
Also Read: Misuse of Veto Power