Privileges and Powers of Parliament and its members

Parliamentary privilege is a legal protection/immunity from civil or criminal liability which the members of certain legislatures may bring upon themselves while discharging their parliamentary duties. It is common in countries whose constitution is based upon Westminster System.

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In India, the power and privileges are provided to members of the two houses namely Rajya Sabha and Lok Sabha. These are deemed necessary for proper functioning of these two houses. These rights are not given because of the stature of one gets by being a member of the parliament but because it is necessary that a member feels absolutely at ease in expressing his or her own views in regard to the various discussions that take place and also does not feel burdened while voting against or for a controversial bill that has been introduced in the house.

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The privileges given are of two types –

1. The privileges granted to members individually
2. The privileges granted to both houses of the parliament collectively

First we will understand the privileges granted to the member individually. The privileges given to members individually are as follows:

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1. Freedom of Speech – The members are provided with a freedom of speech which means that a member cannot be held liable to any civil or criminal liabilities for speeches made in the parliament. However, members do not enjoy this freedom outside the 4 walls of the parliament. This freedom has been granted so that the members of the house have no apprehensions in stating their views. These views however can only be made in context of the discussions being held in the parliament for example a member cannot make statements against the conduct of a judge unless it is being done in a discourse which will decide whether a judge is to be removed or not. The freedom of speech enjoyed by the members of the parliament cannot be restricted under the Article 19(2) which provides restrictions to the freedom of speech enjoyed by the citizens of India until the speech has been made in the Parliament and in context of a discussion being held there.
2. Freedom from arrest – The members also enjoy a freedom from arrest. It essentially means that a member of a house cannot be arrested in a civil case when the house is in session and 40 days before the commencement of a session and also 40 days after the adjournment of a session. A member cannot be arrested from within the precincts of the parliament without a prior permission from the house for his/her arrest. The speaker or the chairman needs to be informed by the authority concerned in case of an arrest of a member.

A member can be arrested outside the four walls of the House on criminal cases under the Preventive Detention, ESMA, NSA, POTA or other such Acts.

3. Freedom of attendance as witnesses in courts.

Privileges granted to the Houses collectively are as follows –

1. The right to publish debates and proceedings: Although the Parliament does not restrict the press from publishing its proceedings, yet the houses hold the right to forbid publication of it proceedings. Also the member has a freedom of speech in the parliament but he has not right to publish any proceedings which happen in the court. One can be held responsible for violating this rule.
2. The right to exclude strangers: The houses of the Parliament reserve the right to exclude strangers from its galleries and even punish them. A house can decide to debate behind closed doors whenever it feels it is wise and necessary to do so.
3. The right to punish members and outsiders for breach of its privileges: In India, the Parliament has been given the punitive powers to punish those who are found guilty of contempt of the House. Contempt can be committed by the members of any House or any outsider. A member can be expelled from the house if he misbehaves in the parliament or commit contempt.
4. The right to regulate the internal affairs of the House: In India each house is the High court of the Parliament and therefore it reserves to right to regulate its internal affairs.

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Privileges, Powers and Immunities provided to Parliament and its members are broadly divided in two aspects which are –

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1. Right to freely expressly themselves in Parliament
2. Right to not be prosecuted for publication of comments/statements or vote made in Parliament

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The broadness of these statements has left a lot of room for interpretation which was taken over by the courts.  Other than this, Article 105(3) stated that privileges and immunities of the members and the committees of Parliament will be determined by a law which shall be passed in Parliament. However, to date the legislators have not passed any law which clearly defines these privileges, powers and immunities. It was decided that in such a scenario, the powers, privileges and immunities will be considered to be the same which were in force before section 15 of the 44th Amendment to the Constitution was enacted in 1978. Prior to 1978, India followed the law which delineated the Powers, privileges and Immunities of the members of United Kingdom’s House of Commons. Even though United Kingdom has changed its laws many times since then, India follows the same law which was in force before 1978. This has become a bone of contention many times and the citizens of India somewhere feel that the Parliamentarians misuse these privileges. There is a dire need to fix this issue once and for all because to ensure a smooth functioning of a democracy there needs to be a certain level of trust between the Parliament members and the electorate. The citizens rue the misuse of the Privileges offered to the members of the Parliament because all Privileges whether legal or financial are paid for by the tax-payers money. This has to be a combined and a cohesive effort. This issue can be addressed by framing and passing a law in the Parliament which clearly delineates the Powers, Privileges and Immunities offered to the Parliament and its members.