"Parliamentary Privileges In Case Of Defamation Justified Or Not?"

Om Chandak

13 Nov 2023 4:43 AM GMT

  • Parliamentary Privileges In Case Of Defamation Justified Or Not?

    Lawmakers in India enjoy special rights thanks to Articles 105[1] and 194[2] of the Constitution. The said privileges are governed under Rule No. 222 of the Lok Sabha Rule Book and Rule 187 in chapter 16 of the Rajya Sabha rulebook. Members of parliament have an absolute privilege, which means they cannot be sued in any court for defamatory words or sentences spoken during...

    Lawmakers in India enjoy special rights thanks to Articles 105[1] and 194[2] of the Constitution. The said privileges are governed under Rule No. 222 of the Lok Sabha Rule Book and Rule 187 in chapter 16 of the Rajya Sabha rulebook. Members of parliament have an absolute privilege, which means they cannot be sued in any court for defamatory words or sentences spoken during legislative proceedings or debates, even if they were said maliciously. Parliamentary privileges does not give one carte blanche to use foul language or otherwise disrespect the parliamentary norms of decorum. As mentioned in Pandey Surendra Nath Sinha And others v. Bageshwari Pd.,[3] absolute privileges give it carte blanche to defame others.

    The purpose of this immunity is to allow members of parliament to voice their opinions freely and without fear of repercussions. These privileges also ensuring that those opinions are expressed clearly and in a manner that does not constitute defamation. The breadth of this Privilege is long and therefore individuals can use it to advance their interests, and the fact that they are immune to being sued in any court means that the Judiciary cannot hold them legally accountable for defamatory statements made during parliamentary proceedings.

    History Of Parliamentary Privilege-

    The Parliamentary Privileges originated in UK during the times of English civil war, when the monarch was in power. Parliamentary Privilege was born in the United Kingdom as a means of safeguarding parliamentary rights and respect. Parliamentary privileges were crucial at the time because they allowed lawmakers to express themselves freely without worrying about being taken to court over petty disagreements; this, in turn, facilitated robust debate and the formation of well-informed public policy positions.

    The point is that if a lawmaker does something wrong during a parliamentary debate, the matter should be resolved there rather than in a court of law; in other words, the judicial system does not have jurisdiction over the matter. It all started with the case of Sir John Eliot,[4] in which he was found guilty of making seditious speeches, but the House of Lords later reversed the decision because the incident had taken place in the House and should have been resolved there. Although this right is written into the constitutions of several other countries and is generally accepted as a starting point, the United Kingdom and India have yet to recognize it formally.

    In India after independence in 1949, the issue of codification was raised in the conference; the Chairman, G. S. Mavalankar,[5] disagreed, arguing that it was better not to define specific privileges at that time and instead rely on precedents from the British House of Commons. The disadvantage of codification at the time was that whenever a new situation arose, Legislation would only be able to adjust to it and grant members additional privileges.[6] In the context of the time, any attempt at Legislation would limit privileges.

    Should There Be Rules In Place –

    There is a higher risk of abuse of parliamentary privileges in the current environment, where such privileges are not codified because parliament has become the highest authority in the absence of any other. There is a risk of favoritism in parliament from a group with a good majority, so codifying the law will help define proper boundaries and provide stability for citizens. The proper discussion of issues will be facilitated by codifying what is and is not acceptable to say. A "Constitution Review Commission" led by M.N. Venkatachalia was established in 2000;[7] he argues that violating and confining privileges are necessary so that lawmakers can do their jobs without interference. In other words, they will not pass a law that goes against them, so there is no point in codifying the law now. Legislative immunity in Australia is written into law. As the 1955 case of Fitzpatrick and Browne demonstrated, however, if a House were to use this authority, it could be difficult for a court to determine whether an individual's actions constituted an offense against the House. The Act of 1987 clarifies the meaning of "proceedings in parliament," among other things, and helps to resolve this problem.

    Why Lawmakers Should Not Enjoy Complete Immunity From Defamation Suits-

    If someone intentionally defames another person in the eyes of a third party, the primary purpose of defamation law is to punish the offender criminally. Members of parliament who use defamatory language meet all the requirements for defamation. like the i.) statement must be false, ii.) the statement should be communicated to a third party, iii) the statement must harm the reputation; However, the members of the parliament have been given certain privileges where they are exempted from making defamatory statements and excusing them from punishment is unacceptable because doing so would have a chilling effect on free speech. After all, the same point can be made using language that is not defamatory. There are several defenses to defamation, including "speak truth to power" and "speaking in the public interest." Members should not be granted this power if there is any suspicion that they will use it to smear the reputations of others rather than to foster open and honest debate. Since parliamentary debates are broadcast live on TV, any defamation of a person during one of these events will likely reach every corner of the country and could permanently damage their reputation. Let us discuss the current situation and the government's steps to address this problem.

    The Current Mechanism In India To Prevent Abuse Of Parliamentary Privilege–

    In India, there is a list of "Unparliamentary Words" these words should not be used during parliamentary proceedings. This list is updated according to the situation, with the most recent update occurring on Jul. 14, 2022. The Unparliamentary words are codified by the parliamentary privileges act 1987.

    The terms like 'Covid spreader,' 'Shakuni,' 'Khalistani,' 'Khoon ki kheti,' 'drama,' 'betrayed,' and 'taanashahi,' and many more words were added, among others.[9] If the terms mentioned in the new booklet are spoken or used during parliamentary proceedings, they will be expunged or, in simpler terms, marked for deletion. According to Rule 380 of the Rules of Procedure and Conduct of business in Lok Sabha, if the Speaker believes that words used in the debate are defamatory, indecent, unparliamentary, or undignified, the Speaker may, at his or her discretion, order the removal of such words from the proceedings of the House. However, unparliamentary language cannot help resolve this situation because a speaker can use various kinds of words to defame the other person if he intends to defame, and the person with the intent to defame can defame through ironical language. According to the precedent, it is clear that Unparliamentary Words alone cannot restrict the Speaker from defaming, so let us discuss a solution.


    Standard exceptions are inapplicable in certain circumstances; therefore, members of parliament should be granted privileges during parliamentary proceedings. However, giving them absolute Privilege would be excessive; therefore, they should be granted "qualified privilege," under which a person can be sued if he commits an act with mala fide intent.[10] In qualifies Privilege, the circumstances are also considered, such as a person acting in defense of his reputation. It is unlike absolute privileges in which the Speaker cannot be held liable in court. In qualified privilege speaker can be used in court, depending on the circumstances. Unparliamentary language with Qualified Privilege can aid in problem resolution because it will solve the problem without hampering their free speech, which is essential during parliamentary proceedings.

    Why Parliamentary Privileges Are Essential-

    Parliamentary speakers are responsible for making or amending the law, which helps fill the dearth in the current legal system. While debating on a point, there might be some instances where their words might be defamatory, but there are spoken with the bonafide intention to protect people from the wrong use of the void in law or for any other reason. In the case of the State of Karnataka v. Union of India,[11] privileges are the powers deemed necessary to enable the smooth conduct of both Houses' business. However, while freedom of expression is the Vi

    Views are personal.

    [1] India Const. art 105.

    [2] India Const. art 194.

    [3] Pandey Surendra Nath Sinha And others v. Bageshwari Pd. (1960) AIR 1961 Pat 164.

    [4] 3 Howell‘s State Trials 294.

    [5] Constitutional Assembly Debates, Part Ii, 19 May, 1949.

    [6] Shubhank Patel & Rishi Raj Mukherjee, The Codification Conundrum of Parliamentary Privileges, Manupatraa (Feb.1,2021), https://articles.manupatra.com/article-details/The-Codification-Conundrum-of-Parliamentary-Privileges.

    [7] P.O.C. Proceedings, 18-7-1939, p 28-29.

    [8] Parliamentary Privileges Act, 1947.

    [9] Sandeep Phukan, Political uproar over a new list of unparliamentary words, The Hindu (Jul. 14, 2022), https://www.thehindu.com/news/national/political-uproar-over-new-list-of-unparliamentary-words/article65640837.ece.

    [10] Pandey Surendra Nath Sinha v. Bageshwari PD, AIR 1961 Pat 164.

    [11] State of Karnataka v. Union of India, MANU/SC/0144/1977.

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