Parliamentary Privilleges (Article 105)

The Shield of Democracy: A Deep Dive into Parliamentary Privileges (Article 105)

Parliamentary privileges, enshrined in Article 105 of the Indian Constitution, are a cornerstone of democratic governance. They are a set of special rights and immunities enjoyed by members of Parliament (MPs) to ensure the smooth functioning of the legislature and safeguard its independence. This article delves into the intricacies of these privileges, exploring their historical context, legal framework, and contemporary relevance.

A Historical Perspective: From Ancient Origins to Modern India

The concept of parliamentary privileges has deep roots in history, dating back to the medieval period in England. The English Parliament, seeking to protect its autonomy from the Crown, gradually established a set of privileges that ensured its independence and allowed it to effectively perform its legislative and oversight functions. These privileges were not codified but evolved through custom and judicial pronouncements.

The Indian Constitution, drawing inspiration from the Westminster system, incorporated the concept of parliamentary privileges in Article 105. This article, along with Article 194 for state legislatures, grants MPs and MLAs certain special rights and immunities. The framers of the Constitution recognized the importance of these privileges in ensuring the smooth functioning of the legislature and safeguarding its independence from the executive.

The Legal Framework: Article 105 and its Interpretation

Article 105 of the Indian Constitution states:

“105. Powers, privileges and immunities of Houses of Parliament and their members.

(1) Subject to the provisions of this Constitution, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, as existing on the commencement of this Constitution.

(2) Parliament may, by law, make provision for the regulation of the procedure of, and the conduct of business in, each House of Parliament, and for the powers, privileges and immunities of the members and the committees of each House.”

This article establishes a two-pronged approach:

1. Parliamentary Law: Parliament has the power to define the specific powers, privileges, and immunities of its members through legislation. However, no such law has been enacted yet.
2. Borrowing from the UK: In the absence of a specific law, the privileges of the Indian Parliament are deemed to be those of the House of Commons of the UK Parliament as they existed on the commencement of the Indian Constitution (January 26, 1950).

This reliance on the UK system has led to several challenges in interpreting and applying parliamentary privileges in India. The historical context and legal framework of the UK system may not always be directly applicable to the Indian context, leading to ambiguity and potential conflicts.

Key Parliamentary Privileges: A Detailed Examination

The privileges enjoyed by MPs in India can be broadly categorized into the following:

1. Freedom of Speech:

• Protection from Legal Action: MPs enjoy absolute freedom of speech within the House. They cannot be sued for anything said or written in the House, even if it is defamatory or offensive. This privilege extends to the publication of parliamentary proceedings.
• Protection from Arrest: MPs are immune from arrest during parliamentary sessions, except for serious offenses like treason, felony, or breach of peace. This privilege ensures that MPs can freely participate in parliamentary proceedings without fear of being detained.

2. Right to Question:

• Unrestricted Questioning: MPs have the right to ask questions to ministers on any matter related to government policy or administration. This right is crucial for holding the executive accountable and ensuring transparency.
• Right to Debate: MPs have the right to debate and discuss any matter of public importance in the House. This right allows for the free exchange of ideas and the formulation of informed opinions on various issues.

3. Right to Access Information:

• Access to Government Documents: MPs have the right to access government documents and information relevant to their parliamentary duties. This right is essential for effective oversight of the executive.
• Right to Summon Witnesses: MPs can summon witnesses to appear before parliamentary committees to provide information or evidence on matters under investigation.

4. Privilege of the House:

• Control over its Proceedings: The House has the exclusive right to regulate its own proceedings and maintain order within its chamber. This includes the power to punish members for disorderly conduct.
• Protection from Interference: The House is protected from interference by the executive or judiciary in its internal affairs. This ensures the independence and autonomy of the legislature.

5. Privilege of Committees:

• Right to Investigate: Parliamentary committees have the right to investigate any matter within their purview, including summoning witnesses and demanding documents.
• Right to Report: Committees have the right to submit reports to the House based on their investigations, which can lead to policy changes or accountability measures.

The Balancing Act: Privileges vs. Fundamental Rights

While parliamentary privileges are essential for the smooth functioning of the legislature, they must be balanced against the fundamental rights of citizens, particularly the right to freedom of speech and expression. This balancing act has been a source of tension and controversy in India.

Cases of Conflict:

• The Kesavananda Bharati Case (1973): The Supreme Court held that parliamentary privileges cannot be used to curtail fundamental rights. This landmark judgment established the principle of judicial review over parliamentary privileges.
• The S.R. Bommai Case (1994): The Supreme Court reiterated the principle of judicial review and held that parliamentary privileges cannot be used to suppress dissent or stifle criticism.
• The P.V. Narasimha Rao Case (1998): The Supreme Court ruled that the power to punish for contempt of the House cannot be used to suppress legitimate criticism of the government.

These cases highlight the importance of striking a balance between parliamentary privileges and fundamental rights. The courts have played a crucial role in ensuring that privileges are not used to suppress dissent or undermine the rule of law.

Contemporary Challenges and Reforms

The concept of parliamentary privileges in India faces several contemporary challenges:

• Lack of Codification: The absence of a specific law defining parliamentary privileges has led to ambiguity and inconsistency in their application.
• Abuse of Privileges: There have been instances of MPs using their privileges to stifle criticism, intimidate witnesses, or obstruct investigations.
• Lack of Transparency: The procedures for invoking and enforcing privileges are often opaque, leading to concerns about accountability and fairness.

Proposed Reforms:

• Codification of Privileges: Enacting a law defining parliamentary privileges would provide clarity and consistency in their application.
• Strengthening Judicial Oversight: Enhancing the role of the judiciary in reviewing the exercise of privileges would ensure their proper use and prevent abuse.
• Promoting Transparency: Establishing clear procedures and guidelines for invoking and enforcing privileges would enhance transparency and accountability.

Conclusion: A Vital Shield for Democracy

Parliamentary privileges, while essential for the smooth functioning of the legislature, must be exercised responsibly and within the framework of the Constitution. The balancing act between privileges and fundamental rights is crucial for ensuring a vibrant and accountable democracy.

Table 1: Parliamentary Privileges in India

Table 2: Cases on Parliamentary Privileges

Parliamentary privileges are a vital shield for democracy, protecting the legislature’s independence and ensuring its ability to effectively perform its functions. However, these privileges must be exercised responsibly and within the framework of the Constitution, striking a delicate balance between the needs of the legislature and the fundamental rights of citizens. As India continues to evolve as a democracy, the debate on parliamentary privileges will remain a crucial aspect of ensuring a robust and accountable system of governance.

Frequently Asked Questions on Parliamentary Privileges (Article 105)

1. What are parliamentary privileges?

Parliamentary privileges are special rights and immunities enjoyed by members of Parliament (MPs) to ensure the smooth functioning of the legislature and safeguard its independence. These privileges allow MPs to perform their duties without fear of undue interference or legal repercussions.

2. What is the legal basis for parliamentary privileges in India?

Article 105 of the Indian Constitution outlines the powers, privileges, and immunities of the Houses of Parliament and their members. It states that these privileges are to be defined by Parliament through law, but in the absence of such a law, they are deemed to be those of the House of Commons of the UK Parliament as they existed on the commencement of the Indian Constitution.

3. What are some key examples of parliamentary privileges?

Key privileges include:

• Freedom of Speech: MPs enjoy absolute freedom of speech within the House, protected from legal action for anything said or written.
• Right to Question: MPs have the right to ask questions to ministers on any matter related to government policy or administration.
• Right to Debate: MPs have the right to debate and discuss any matter of public importance in the House.
• Right to Access Information: MPs have the right to access government documents and information relevant to their parliamentary duties.
• Privilege of the House: The House has the exclusive right to regulate its own proceedings and maintain order within its chamber.
• Privilege of Committees: Parliamentary committees have the right to investigate any matter within their purview, including summoning witnesses and demanding documents.

4. Can parliamentary privileges be used to suppress dissent or criticism?

No, parliamentary privileges cannot be used to suppress dissent or stifle criticism. The Supreme Court has repeatedly held that these privileges must be balanced against the fundamental rights of citizens, particularly the right to freedom of speech and expression.

5. What are the challenges associated with parliamentary privileges in India?

Challenges include:

• Lack of Codification: The absence of a specific law defining parliamentary privileges leads to ambiguity and inconsistency in their application.
• Abuse of Privileges: There have been instances of MPs using their privileges to stifle criticism, intimidate witnesses, or obstruct investigations.
• Lack of Transparency: The procedures for invoking and enforcing privileges are often opaque, leading to concerns about accountability and fairness.

6. What reforms are being proposed to address these challenges?

Proposed reforms include:

• Codification of Privileges: Enacting a law defining parliamentary privileges would provide clarity and consistency in their application.
• Strengthening Judicial Oversight: Enhancing the role of the judiciary in reviewing the exercise of privileges would ensure their proper use and prevent abuse.
• Promoting Transparency: Establishing clear procedures and guidelines for invoking and enforcing privileges would enhance transparency and accountability.

7. How do parliamentary privileges contribute to a healthy democracy?

Parliamentary privileges are crucial for a healthy democracy by:

• Ensuring the independence of the legislature: They protect MPs from undue interference by the executive or judiciary, allowing them to freely perform their duties.
• Facilitating effective oversight of the government: They empower MPs to hold the executive accountable through questioning, debate, and access to information.
• Promoting open and robust debate: They guarantee freedom of speech within the House, allowing for the free exchange of ideas and the formulation of informed opinions.

8. Are there any limitations on parliamentary privileges?

Yes, parliamentary privileges are not absolute and are subject to limitations. They cannot be used to:

• Curtail fundamental rights: The Supreme Court has established the principle of judicial review over parliamentary privileges, ensuring that they do not infringe upon the fundamental rights of citizens.
• Suppress dissent or criticism: The courts have consistently held that privileges cannot be used to stifle legitimate criticism of the government or individuals.
• Obstruct the course of justice: Privileges cannot be used to interfere with the judicial process or obstruct investigations.

9. What is the role of the courts in relation to parliamentary privileges?

The courts play a crucial role in ensuring that parliamentary privileges are exercised responsibly and within the framework of the Constitution. They have the power to review the exercise of privileges and ensure that they do not infringe upon fundamental rights.

10. What is the future of parliamentary privileges in India?

The future of parliamentary privileges in India will depend on the ongoing debate and reforms aimed at addressing the challenges associated with their application. It is essential to strike a balance between the need for these privileges to ensure the smooth functioning of the legislature and the need to protect the fundamental rights of citizens.

Here are some multiple-choice questions (MCQs) on Parliamentary Privileges (Article 105) with four options each:

1. Which of the following is NOT a key parliamentary privilege enjoyed by members of Parliament in India?

a) Freedom of Speech
b) Right to Question
c) Right to Vote in Elections
d) Right to Access Information

Answer: c) Right to Vote in Elections

2. Article 105 of the Indian Constitution states that the powers, privileges, and immunities of each House of Parliament shall be defined by:

a) The President of India
b) The Supreme Court of India
c) Parliament by law
d) The Speaker of the Lok Sabha

Answer: c) Parliament by law

3. Which of the following cases established the principle of judicial review over parliamentary privileges?

a) The Kesavananda Bharati Case (1973)
b) The S.R. Bommai Case (1994)
c) The P.V. Narasimha Rao Case (1998)
d) The Golak Nath Case (1967)

Answer: a) The Kesavananda Bharati Case (1973)

4. Which of the following is a contemporary challenge faced by the concept of parliamentary privileges in India?

a) Lack of codification
b) Abuse of privileges
c) Lack of transparency
d) All of the above

Answer: d) All of the above

5. Which of the following is NOT a proposed reform to address the challenges associated with parliamentary privileges?

a) Enacting a law defining parliamentary privileges
b) Strengthening judicial oversight
c) Abolishing parliamentary privileges altogether
d) Promoting transparency in procedures

Answer: c) Abolishing parliamentary privileges altogether

6. Which of the following statements is TRUE regarding the relationship between parliamentary privileges and fundamental rights?

a) Parliamentary privileges always supersede fundamental rights.
b) Fundamental rights always supersede parliamentary privileges.
c) There is a delicate balance between the two, and neither can be used to suppress the other.
d) The relationship between the two is not clearly defined.

Answer: c) There is a delicate balance between the two, and neither can be used to suppress the other.

7. The right to question ministers on any matter related to government policy or administration is known as:

a) Freedom of Speech
b) Right to Debate
c) Right to Access Information
d) Right to Question

Answer: d) Right to Question

8. Which of the following is an example of a privilege enjoyed by parliamentary committees?

a) The right to regulate their own proceedings
b) The right to investigate any matter within their purview
c) The right to publish their reports without any restrictions
d) The right to summon witnesses and demand documents

Answer: d) The right to summon witnesses and demand documents

9. The principle that parliamentary privileges cannot be used to suppress dissent or stifle criticism was reiterated in which case?

a) The Kesavananda Bharati Case (1973)
b) The S.R. Bommai Case (1994)
c) The P.V. Narasimha Rao Case (1998)
d) The Golak Nath Case (1967)

Answer: b) The S.R. Bommai Case (1994)

10. Which of the following is NOT a benefit of parliamentary privileges for a healthy democracy?

a) Ensuring the independence of the legislature
b) Facilitating effective oversight of the government
c) Promoting open and robust debate
d) Protecting MPs from all legal action

Answer: d) Protecting MPs from all legal action