"There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." -- James Madison
It is axiomatic that the parliamentary functioning forms the bedrock upon which a democratic structure and the whole constitutional system rest. The hallmark of a democratic country is a free, open and fearless discussion in the parliament. A variety of rights have been given to all the members of the houses to enable them to express their views and opinions without any kind of favour or fear of being penalised for certain offences such as defamation etc. For the effective and efficient exercise of their powers, the Parliament has conferred certain privileges on the members of the houses which are recognized as Parliamentary privileges. In Britain, the famous case of Sir John Eliot and the Bill of Rights, 1688, laid down the principle that the freedom of speech and debates in the parliament should not be questioned anywhere outside the parliament. As we have borrowed the parliamentary form of government from Britain, the concept of parliamentary privileges has also been adopted from there.
On the other hand, the Constitution also guarantees the fundamental rights to every citizen which are inalienable and sacred. The question has been raised from time and again whether the fundamental rights put a restraint on the power of parliamentary privilege or vice versa and which will prevail in case of the conflict between them. There are various judicial pronouncements that attempt to throw light upon this issue, nevertheless, the problem is still unresolved.
GENERAL IDEA OF PRIVILEGES AND THE FUNDAMENTAL RIGHTS:
The term 'privilege' is derived from "privilegium" which means a law specially passed in favour of or against a particular person. In Raja Ram Pal v. Lok Sabha speaker, the Supreme Court defined the term privilege as "A special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts."
After analysing these points, it is evident that parliamentary privileges are some sort of special benefits and immunities given to all the members of the parliament and state legislative assemblies so that they can fearlessly and without any hesitation express their views or discharge their duties.
On the other hand, fundamental rights are given to all those persons who are the citizens of India by part III of the constitution of India. The fundamental rights are termed as 'fundamental' because they are essential and inviolable human rights. These rights cherish the values of equality, freedom and dignity of an individual. They act as the safeguard of dignity, liberty and freedom of an individual against invasion by the state. They put several restraints on tyrannical actions. There has always been conflict between parliamentary privileges given to all the members of the houses and the rights given to all the citizens under part III of Indian constitution.
Article 105 contains the privileges enjoyed by the members of the parliament. Similarly, Art. 194 deals with the privileges given to the members of state legislative assembly. Art. 105 is viewed as mutatis mutandis with Art. 194 because both the articles are deemed to be identical in their effect.
However, the said provisions do not exhaustively enumerate all the privileges. They explicitly provide some privileges and for the remaining, they prescribe the power of a House to that of the House of Commons in Britain.
The right to freedom of speech in Parliament is guaranteed under art. 105(1). Additionally, Article 105(2) confers immunity with regard to proceedings in courts. It provides that any member of parliament cannot be held liable to any 'proceedings' in any court in relation to anything uttered, any vote casted in Parliament or a committee thereof. It must be noticed that parliamentary privileges are also available to those who, though not members of a House, are authorized to speak and participate in the proceedings of a House or any of its committees. These individuals may be Ministers and Attorney-General.
It is to be noted that these powers are not absolute. The rules of procedure of a House made under Art. 203 put a restraint on the members' freedom of speech so that the right can be exercised judiciously. It would be apt to mention that under Rules 349 to 356 of the Lok Sabha, unparliamentary language and unparliamentary conduct of a member are prohibited. Besides, Articles 121 and 211 of the constitution also limit this power. Additionally, all the members whatever the rights enjoy inside the house, they are not entitled to enjoy such rights outside the house.
Parliamentary privileges and immunities are intended to ensure the efficient discharge of the legislative functions. The representatives have been provided certain powers and privileges so that the House may function independently, efficiently, fearlessly and represent the views or will of 'we the people of India'.
Privileges also protect the independence, authority and dignity of each house. As a matter of fact, they guard the members of Parliament against unwarranted pressure of any legal action. Commenting on the importance of parliamentary privilege the Supreme Court in Kalpana Mehta V. Union of India, stated that free speech is a fundamental pillar of democratic governance. Fearless expressions of the people's representatives are necessary to raise issues of their electors. Democratic accountability and free flow of dialogue are the sine qua non of representative democracy.
In India, The earliest instance of a breach of privilege can be traced when a member registered a complaint in the constituent assembly that the entry of horse-drawn carriage was obstructed by the doorkeeper of the gates of the Assembly. However, the first incidence of the exercise of parliamentary privilege was when HR Mudgal was found guilty of taking bribe for asking questions in the assembly, which eventually resulted in his resignation in 1951.
The first time, the conflict between privilege and fundamental rights reached before the court in the case of Gunupati Keshavram Reddy v. the Nafisul Hasan and State of U.P. In this case, The Blitz published a news report and made certain derogatory statements against the speaker of the U.P. legislative assembly. This issue was sent to the Committee of Privileges of the House for the investigation. The editor of the Blitz, D.H. Mistry, was asked to appear before the house to provide cogent justification for his conduct. But, D.H. Mistry did not give any reply and refused to appear before the house. Consequently, the assembly passed a resolution that the speaker should pass an order to arrest him and ensure his presence before the house. As a result, Mistry was arrested for committing the breach of parliamentary privileges. He was put in a hotel for a week.
He filed a petition for the issuance of a writ of habeas corpus in the Supreme Court contending that his fundamental right guaranteed under Art. 22(2) had been violated.
The Supreme Court endorsed the contention that Mistry was not produced before a magistrate within the stipulated time. Hence, his fundamental right guaranteed under art. 22.(2) had been infringed. The court passed an order for his release.
On the critical perusal of this judgement, it can be perceived that the fundamental rights were declared superior to parliamentary privileges. However, this notion has been altered in subsequent pronouncements of the courts.
The second time, the conflict again went to the court in Pandit, M.S.M. Sharma v. Shri Sri Krishna Sinha.As per the facts of this case, in Bihar assembly, a member of the house delivered a speech. The speaker directed that a particular portion of the speech must be expunged. But, The Searchlight published the whole speech violating the order of the speaker. Consequently, the editor was asked to appear before the house to give his justification for the same.
He moved a writ petition in the Supreme Court under Art. 32 claiming that the said notice and the proposed action by the committee infringed his Fundamental Right to freedom of speech and expression guaranteed by Art. 19(1)(a). But, his contention was dismissed by the Supreme Court. Another argument was put forward by the petitioner that the proceedings before the Committee of Privileges violated his fundamental right to life and liberty enshrined under Art. 21. While rejecting this contention, the court observed that the House has the power to make rules under Art. 118 in case of a House of Parliament, or Art. 208 in case of a House of the State Legislature. So, the rules made by the House regulating the procedure for enforcing its powers, privileges and immunities would fulfil the requirement of Art. 21.
Again the petitioner came to the court under Art. 32 for seeking a reconsideration of the earlier decision. Substantially the same questions, as discussed and decided in Searchlight I, were raised. But, the court turned down the plea to reconsider its previous judgement.
In toto, it was held that the privileges enjoyed by a House of Parliament and the state legislature under Art. 105(3) and 194(3)] respectively are not subject to Art. 19(1)(a), and therefore, the House was entitled to prohibit the publication of any report of its debates or proceedings even if the prohibition contravenes the Fundamental Right of Speech and Expression of the publisher. The conflict between these provisions should be resolved with the help of 'harmonious construction' of the two provisions, and Art. 19(1)(a) being of a general nature must yield to Art. 105(3) [or Art. 194(3)].
In another landmark and very interesting case of In re Keshav Singh, an arrest warrant was issued against Keshav Singh for committing the contempt of house for writing a disrespectful letter to the speaker. Subsequently, he was arrested and sentenced to 7 days of imprisonment. He challenged this order through the writ of habeas corpus in Allahabad high court under Art. 226. The bench of 2 judges granted him bail. After his release, the assembly moved a resolution holding the view that the judges, advocate and Keshav Singh had committed the contempt of the house. The house ordered that all of them should be taken under the custody and presented before the house.
On the other hand, all these four members, through a separate petition, moved to the high court, saying that this should be treated as the contempt of the court. 28 judges sat together and stayed this order. Eventually, the house withdrew the warrant and asked them to be present before the house.
Meanwhile, the president referred this matter to the Supreme Court under Art. 143 and asked for its advice. Mainly three contentions were raised:
1. Whether the legislature is the sole and absolute judge of its privileges;
2. Whether any house is competent to punish a person for its contempt taking place outside the house;
3. Whether the action of the high court entertaining the petition of habeas corpus challenging the validity of the order of the speaker would tantamount to the contempt of the house.
The Supreme Court concluded that the house is the absolute and sole judge of the house. Secondly, it is competent to punish a person for its contempt taking place outside house. Analysing the third issue, the Supreme Court held that the power of judicial review is vested with the Supreme Court and the high courts, and any order or issuances cannot be treated as the contempt of the house. The Supreme Court expressed its views that the right to speech and expression guaranteed under 19(1)(a) would be subservient to the privileges and Articles 21 and 20 would override the privileges.
In the case of Tej Kiran Jain And Others V. Sanjiva Reddy And Others., the Supreme Court observed that defamation proceedings cannot be instituted against the parliamentarians for their speeches made in the parliament. The only caveat is that such speech must be in the course of parliamentary business.
Similarly, in the case of Raja Ram Pal v. Lok Sabha Speaker, 11 members of the parliament were caught taking bribes on the camera by a news-channel. The parliament, in a hurry and fury, ordered an immediate inquiry. The committee of privileges enquired about this matter and held all of them guilty. They all were disqualified.
They filed writ petitions in the Supreme Court for seeking the reinstatement. The court held that "In light of the law laid down in the two cases of Pandit Sharma and in the case of U.P. Assembly we hold that the broad contention on behalf of the Union of India that the exercise of Parliamentary privileges cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct." The court explicitly held that privileges are subservient to Fundamental Rights on a case to case basis. Moreover, the court reposed in its hand the power to review applying the test of legality and constitutionality.
The difference between fundamental rights and parliamentary privileges pertaining to freedom of speech and expression is elaborately discussed in the case of AlagaapuramR.Mohanraj v. Tamil Nadu Legislative Assembly. The essential distinguishing traits are summarized below:
· All the citizens of India have the fundamental right to freedom of speech and expression guaranteed under 19(1)(A). Whereas, the right to freedom of speech mentioned under Article 105 and 194 is only given to the members of legislative bodies. Therefore, it becomes evident that article 105 and 194 can be exercised only by the chosen members of the houses.
· The freedom of speech enshrined in Articles 105 and 194 can be exercised by the individuals only during the tenure of the membership of legislative bodies. However, the fundamental right under Article 19(1)(a) is inalienable as the citizenship rights are usually not revoked.
· The right to freedom of speech and expression provided by Article 105 and 194 is exercised only within the boundary of the premises of the legislative bodies. But, the right given by article 19(1)(A) has no such geographical limitations and can be exercised throughout the territory of India.
· The right provided under art. 19(1)(a) is subject to the exceptions given under art. 19(1)(2). However, the right of free speech available to a legislator is not subject to such restrictions imposed by law.
Notwithstanding, such power is subject to "other provisions of the Constitution and to the rules and standing orders regulating the procedure of the legislative bodies" as it is evident from the opening clauses of articles 105 and 194.
Articles 121 and 211 also put express limitation on this power as these articles prohibit any discussion in the legislative bodies about the conduct of any Judge of the Supreme Court or of the High Court in the discharge of his/her duties.
So, it is crystal-clear that the ambit of the right to freedom of speech and expression given to the citizen and the members of the legislative body is entirely different.
THE NEED FOR CODIFICATION OF THE PARLIAMENTARY PRIVILEGES: WAY FORWARD
In the matter of privileges, the legislators have absolute power to determine—
· What should be their privileges?
· What would be regarded as its breach?
· What would be punishment for the breach of parliamentary privilege?
But, such kind of unfettered power goes contrary to the notion of constitutionalism (the idea of limited power). It is a strange fact that the framers of the constitution have left a large area of the parliamentary privileges open-ended. While the Constitution accords special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of the Parliament and the legislatures, it must be noticed that these powers and privileges are yet not codified and have been misused from time to time. In the absence of specified rules, it has been a matter of debate that what constitutes the breach of privilege and what punishment it will entail.
Needless to mention, in the case of M.S.M. Sharma, the court gave primacy to the privileges over free speech because during that time the court had a lot of respect for the legislators as most of them were freedom fighters. However, by 1967, the Supreme Court was convinced that Parliament should not have absolute powers and there must be some limitations. The Constitution Review Commission headed by Justice M.N. Venkatachaliah also highlighted that the scope of privileges should be delimited so that the democratic functioning can be ensured.
In India, the members of the houses are not willing to codify the privileges and now and then the misuse of these powers can be witnessed. They use the weapon of privileges against the reporters, journalists and writers. Asmita Basu, Amnesty International India's program director, maintained, "All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees".
It is to be noted that the house of representatives of The United State of America is functioning efficiently without any penal provisions. Furthermore, Australia has codified the privileges and working without any hustle and tussle since 1987.
The Codification of privileges is always openly opposed by Indian legislators because it would render privileges subject to the fundamental rights. As a result, they will be covered under judicial scrutiny. Moreover, the expansion of the power of privileges would no longer be so much easy. It is to be noted that once the parliamentary privileges are codified, they will turn to be (law) as per art. 13(2) of the constitution. Consequently, they can be declared null and void if they violate any fundamental right.
Thomas Erskine rightly observed that privileges of parliament are an essential prerequisite for the due execution of its powers, however these powers are given for the public service and should not be misused against the common masses. It is axiomatic that the powers, privileges and immunities pave the way for the members of the houses to discharge their duties properly and these rights are essential in the functioning of parliamentary democracy. But, there should be some check on the powers of each and every organ, otherwise it gives birth to tyranny. It is a well-recognized dictum "power tends to corrupt, and absolute power corrupts absolutely". Hence, there must be some restraints on the powers of the members of the houses and it is necessary to codify all the privileges so that it would become evident that what would constitute 'breach of parliamentary privilege'.
It is necessary to maintain a balance between parliamentary privilege and fundamental rights. The members of the houses should not think that they are the supreme and have unrestricted powers. If truth be told, they are the servants of 'we the people of India', therefore, they cannot act like a despot. On the other hand, every citizen should understand the fact that some exclusive powers and privileges are indispensable to the due discharge of the duties of the houses and represent people's views fearlessly.
Views are personal only.
(Author is a 4th year law student at the Faculty of Law, Jamia Millia Islamia)
 M.P. Jain, Indian Constitutional Law 91 (6th ed., 2011).
 Raja Ram Pal V. Hon'ble Speaker, Lok Sabha & Ors., (2007) 3 SCC 184.
 M. Nagaraj And Others V. Union Of India And Others 2006 8 SCC 212.
 Maneka Gandhi V. Union Of India 1978 A.I.R. 597.
 Jain Supra 1.
 Raja Ram Pal V. Hon'ble Speaker, Lok Sabha & Ors. (2007) 3 SCC 184.
 LNIND 2018 SC 286.
 BC Shukla, Expulsion from Parliament and aftermath, hindustan times (Feb 20, 2006) https://www.hindustantimes.com/india/expulsion-from-parliament-and-aftermath/story-EL4Jg0XTPA2ejGhiR4fGjK.html.
 AIR 1954 SC 636.
 AIR 1959 SC 395.
 Pandit M. S. M. Sharma V. Shri Sri Krishna Sinha (II), AIR 1960 SC 1186.
 AIR 1965 SC 745.
 1970 AIR 1573.
  2 MLJ 148.
 Faizan Mustafa, The balance between fundamental rights and parliamentary privilege must be re-examined, The Hindu, https://www.thehindu.com/opinion/op-ed/bring-the-house-up-to-date/article19253239.ece.
 Johnson T. A., Privilege of legislators: Breach a grey area, harsh punishment rare, Indian Express (Jun. 29, 2017, 1.41 am) https://indianexpress.com/article/explained/privilege-of-legislators-breach-a-grey-area-harsh-punishment-rare-karnataka-assembly-journalists-punishment-4726790/.
 Erskine May, Parliamentary Practice 209 (24th ed., Malcolm Jack, 2011).