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NATIONAL LAW UNIVERSITY, ODISHA

2014

POLITICAL SCIENCE (HONS.)
PROJECT ON


PARLIAMENTARY PRIVILEGES IN INDIA AND FRANCE





SUBMITTED TO: SUBMITTED BY:
DR. AFROZ ALAM PARU L PADHI
ASSISTANT PROFESSOR OF POLITICAL SCENCE 2011/ BA LLB/033
REGISTRAR (I/C)
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TABLE OF CONTENTS



PRIVILEGES: MEANING AND HISTORY ................................................................................. 3
PURPOSE BEHIND PARLIAMENTARY PRIVILEGES ............................................................ 4
THE JUSTIFICATION OF PARLIAMENTARY PRIVILEGES ................................................. 5
THE RELATION BETWEEN JUDICIAL REVIEW AND THE LEGISLATIVE PROCESS..... 7
PRIVILEGES: INDIAN CONTEXT .............................................................................................. 9
REGARDING SPEECH ........................................................................................................... 11
REGARDING PUBLICATION ................................................................................................ 12
REGARDING VOTING ........................................................................................................... 13
REGARDING STATUTORY LAW ........................................................................................ 16
THE CONTROVERSY ................................................................................................................ 19
PARLIAMENT SOVEREIGNTY AND CONSTITUTIONAL DEMOCRACY .................... 19
FUNDAMENTAL RIGHTS AND PARLIAMENTARY PRIVILEGES ................................ 21
THE FRENCH MODEL ............................................................................................................... 23
FREEDOM OF SPEECH .......................................................................................................... 23
FREEDOM FROM ARREST ................................................................................................... 24
PUNISHMENT FOR OFFENCES ........................................................................................... 25
CONCLUSION ............................................................................................................................. 25
BIBLIOGRAPHY ......................................................................................................................... 26




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If men were angels, no government would be necessary. If angels were to govern men, neither
internal nor external controls on government would be necessary. In framing a government
which is to be administered by men over men the great difficulty lies in this: You must first
enable the government to control the governed; and in the next phase oblige it to control itself.
1

PRIVILEGES: MEANING AND HISTORY

'Privileges' in the context of constitutional law can be understood only by reference to works of
eminent authors on parliamentary procedure. Sir Thomas May, regarded as the foremost
authority on parliamentary privileges has defined privileges as-
"The sum of the peculiar rights enjoyed by each House collectively as a constituent part of the
High Court of Parliament, and members of each House, individually, without which they cannot
discharge their functions and which exceeds those possessed by other bodies or individuals.
2

The reason of its evolution has been historical. Originally the House of commons was a weaker
body and had a fiercer and prolonged struggle for assertion of its privileges against the crown,
the courts and lords. The result was what originated in the special protection of the king began to
be claimed by commons as customary rights, and some of their claims in course of repeated
efforts to assert them crystallized into legally recognized privileges.
3
At present though there is
no institution like House of Lords or King from whom the legislatures need to be protected, yet
the reason for its continuance has been, the emerging political rivalries, browbeating and
personal animosities from which the house and their members and either who are connected with
their functions have to be protected.
4


1
THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961)
2
E. May, Parliamentary Practice, 16th edn. (London, Butterworth)
3
Anirudh Prasad, "Jurisprudential Study of Legislative Privileges in India", Journal of Bar Council of India, Vol. 16
(3&4): 1989
4
Pachauri, The Law of Parliamentary Privileges in UK and in India, 1stedn., (N.M. Tripathi Pvt. Ltd., Bombay,
1971)
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The sole object of Parliamentary privileges is, thus to protect the rights and dignities of the
members of Parliament or legislative bodies to the extent necessary to enable them to perform
their duties unhindered. The privileges of Parliament form a special kind of law of the land
administered and interpreted by Parliament itself without later review from any outside authority.
Parliament can punish anybody inside or outside the House who is guilty of offending against the
right and dignity of the House.
5
These privileges are a necessary condition for every legislative
body to enable them to discharge their multifarious duties efficiently on behalf of their respective
nations and even rights of citizens have to be curtailed so far as necessary for this purpose. Thus,
in order that there may be adequate ventilation of grievances, through examination of legislative
proposals, or reasonable scrutiny of administrative acts, it is essential that no member of the
legislature should be penalized for anything said within its four walls.
6


PURPOSE BEHIND PARLIAMENTARY PRIVILEGES

Parliamentary privilege refers to the bundle of powers, rights and immunities necessary for the
effective performance of parliamentary functions. It is necessary to protect legislators in the
discharge of their legislative and deliberative functions, and the legislative assemblys work in
holding the government to account for the conduct of the countrys business
7
.

Without the protection afforded by parliamentary privilege, members would be handicapped in
performing their parliamentary duties, and the authority of Parliament itself in confronting the
executive and as a deliberative forum would be diminished. As Griffit and Ryle state:
Parliamentary privilege, even though seldom mentioned in debates, underpins the status and
authority of all Members of Parliament. Without this protection individual Members would be
severely handicapped in performing their parliamentary functions and the authority of the House

5
M. G. Gupta: Some Aspects of Indian Constitution (2nd Ed.)
6
D.D.Basu: Commentary on the Constitution of India
7
Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, Background Paper No. 1/07
available at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications

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itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen,
would be correspondingly diminished.
8


Parliamentary privilege, in essence, is essential to the conduct of Parliaments business, as it is to
the maintenance of its authority and independence. At issue is the integrity and autonomy of the
institution itself. While certain rights and immunities, notably those attached to the freedom of
speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist
for their personal benefit. Parliamentary privilege exists rather to protect the Houses themselves
collectively and their members when acting for the benefit of their House, against interference,
attack or obstruction
9


Without parliamentary privileges, parliament could not discharge their functions efficiently and
effectively. These privileges have developed to allow Parliament to proceed with the business of
making legislation and reviewing the activities of the Executive without illegitimate interference

THE JUSTIFICATION OF PARLIAMENTARY PRIVILEGES

Parliamentary privilege refers to the bundle of powers, rights and immunities necessary for the
effective performance of parliamentary functions. It is necessary to protect legislators in the
discharge of their legislative and deliberative functions, and the legislative assemblys work in
holding the government to account for the conduct of the countrys business.
10

Without the protection afforded by parliamentary privilege, members would be handicapped in
performing their parliamentary duties, and the authority of Parliament itself in confronting the
executive and as a deliberative forum would be diminished. As Griffit and Ryle state:

8
Ibid
9
Ibid
10
Canada (House of Commons)v. Vaid[2005]1 SCR 667, at para. 41.
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Parliamentary privilege, even though seldom mentioned in debates, underpins the status and
authority of all Members of Parliament.
11

Without this protection individual Members would be severely handicapped in performing their
parliamentary functions, and the authority of the House itself, in confronting the Executive and
as a forum for expressing the anxieties of the citizen, would be correspondingly diminished.
12

Parliamentary privilege, in essence, is essential to the conduct of Parliaments business, as it is to
the maintenance of its authority and independence. At issue is the integrity and autonomy of the
institution itself. While certain rights and immunities, notably those attached to the freedom of
speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist
for their personal benefit. Parliamentary privilege exists rather to protect the Houses themselves
collectively and their members when acting for the benefit of their House, against interference,
attack or obstruction
13
.
Without parliamentary privileges, parliament could not discharge their functions efficiently and
effectively. These privileges have developed to allow Parliament to proceed with the business of
making legislation and reviewing the activities of the Executive without illegitimate interference.
Parliamentary privileges, therefore, are grounded in the doctrine of necessity. The content and
extent of these privileges have evolved with reference to their necessity. The privileges of
Parliament include those rights, which are absolutely necessary for the execution of its power.
It is important to bear in mind that the purpose of parliamentary privilege is to secure the proper
dignity, efficiency and independence of the legislature and not to protect individuals from due
process. This legal institution is not a personal immunity; it is an occupational immunity, which
is provided to ensure that the duties of representatives may carry out perfectly. This immunity is
not meant to place a Member of Parliament above the law, but to protect him from possible

11
R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures,
Sweet and Maxwell, 2003
12
CR Munro, Studies in Constitutional Law, London, Butterworth, 1987
13
Seyed Doraid Mousavi Mojab, A Review of Parliamentary Privilege with an Approach to Iranian Legal System,
http://www.kentlaw.edu/jicl/articles/spring2005/s2005_seyed_mousavi.pdf.
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groundless proceedings or accusations that may be politically motivated; thus it is not a
discriminatory institution.
14

The parliamentary privilege protects the legislative branch from interference by the executive
and judicial branches. The purpose is derived directly from the separation of powers doctrine.
The privilege also relieves the parliament and their members from the burden of defending
themselves in court, allowing them to concentrate on their legislative activities.
Another theoretical basis to justify parliamentary privilege is a definite and unquestionable rule
in jurisprudence necessary to override other important interests. The free expression of opinion
and facts in Parliament is so important to our democratic way of life that this freedom (protected
by absolute privilege) overrides any private right or interest of the person who might be
defamed.
15
In other words, the privilege protects statements made in circumstances where the
public interest in securing a free expression of fact or opinion outweighs the private interest of
the person about whom the statements are made.
16


THE RELATION BETWEEN JUDICIAL REVIEW AND THE LEGISLATIVE
PROCESS

To safeguard the constitutional holistic order and sustainable development, and even to protect
the human right, the judiciary can review laws enacted by Parliament, and even declare that one
or all laws are null or void. However, such power to deny a majority vote of the law was
challenged in essence, which has been replaced by legislative function. Someone also considers
the impact of the traditional framework of separation of powers.
17

Whether or not judicial power should intervene in legislative power, as well as its legitimacy is
based on what has become a hot problem about Constitutional study. Because it is different that

14
C.F. Padfield., Law Made Simple, 7th ed., England, Made Simple Books, 1988
15
Ibid
16
Keenan, Denis, Smith and Keenans English Law, 13
th
ed., England, Longman, 2000
17
Vgl. Hans-Peter Schneider,Verfassungsgerichtsbarkeit und Gewaltenteilung, Neue Juristische Wochenschrift
(NJW) 1980, S. 2103.
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historical culture of each country, organized system of the power, as well as the constitutional
validity and so on, the system of unconstitutional review is also different. In America, the
birthplace of Constitutional Review system, the discussions about the problem are especially
heated. One of the most commonly cases affected by criticism and questioning is that Alexander
Bickel put forward an opinion about the unconstitutional review anti-majority plight. The
plight of so-called anti-majority: Democracy refers to the majority principle, which is based on
that the people directly elect members of Parliament; Judicial review that exercised by a minor of
judges. Sufficient to declare that laws or enacted by majority decision is null and void? The
people cannot help feeling doubt.
Modern constitutional democracy Countries emphasize that all public authorities shall be subject
to the supreme law - the Constitution. Therefore, the law passed the majority in Congress, should
also obey constitutional regulation. In other words, the modern constitution includes the
protection of the rights of the people and national organizations of the separation of powers
principle, which be ensured by the superiority of the constitution. The task of constitutional
review is also to protect the rights of the people and to ensure state organs exactly exercise their
powers. Thus the legitimacy of the constitutional review exists in superiority of the Constitution.
Because the court was entitled to declare that the laws enacting the will of the majority were
invalid, someone questioned its anti-democratic majority of the suspects. However, based on the
popular sovereignty on the Constitution, vests in the State organs to exercise the power must
eventually return to the general will of the people.
18
In order to achieve that acts of national
power will return to the general national regulatory requirements, some of scholars think, which
according to the Constitution can be developed in three different forms of justification means.
19

First, functional and institutional democratic legitimacy (funktionelle und institutionelle
demokratische Legitimation): This origin from the principle of separation of powers comes from
constitutional law. Constitutional law regulates and provides all different national organs powers,
each of which has its function and organization, and their legitimacy directly comes from the
constituents power, such as the Federal Constitutional Court exercise of powers in accordance
with the Constitution, which is a national institution set up by the constitution.

18
Eberhard Schmidt-Amann,Verwaltungslegitimation als Rechtsbegriff, AR 116, 1991, S.336.
19
John H.Ely, Democracy and Distrust, Harvard University Press, 1980
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Second, substantive-objective democratic legitimacy (sachlich-inhaltliche demokratische
Legitimation): through the exercise of national power connecting with the will of the people, the
substantive-objective legitimacy of the exercise of judicial power will be reach by trial
according to law, that is, exercise of judicial power must be subject to the law.

Other scholars offer a participation-oriented representation-reinforcing approach to judicial
review.
20
The function of Judicial Review would be to ensure the normal operation of
democratic government and to maintain political participation and free-flowing of political
pipeline network. In other words, the function of constitutional review ensures that equally
participates in dispute settlement procedures, rather than select and decide the value of entities,
because under the system of representative democracy, the value should be decided by the
peoples representative. Theoretically, it refutes anti-majority problems raised by Constitutional
Review. The opinion thinks that judicial review can enhance the operation of representative
democracy. Of representative democracy system failure, that is, representative of decision-
making proceedings are not trustworthy, and the court should be involved in correcting.
21


PRIVILEGES: INDIAN CONTEXT

The Constitution of India is a unique document drawn from many sources.
22
The framers of the
Constitution took tremendous pain to avoid the defects in the prevailing constitutions of the
world and borrowed freely whatever good, element, concept or feature they came across in' the
foreign constitutions. They ransacked all the known constitutions of the world
23
in their zeal to
frame a good and workable constitution for India. The founding fathers were inspired to draw up
an ideal constitution, devoid of all imperfections, to suit the peculiar needs of the Indian People.

20
Ibid
21
Ibid
22
C.A.D. Vol. VI
23
Supra note 5
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Indian Constitution has incorporated many practices and precedents of the British Constitutional
System and the impact of the Mother of Parliaments (British Parliament) is more manifest
pertaining to Parliamentary Privileges which make it obligatory to refer to the century old
conventions established and maintained by the House of Commons of the United Kingdom.
The Constitution of India itself lays down the privileges of the Indian Parliament relating to two
matters, viz. freedom of speech
24
and publication of speeches and proceedings of Parliament.
25

Freedom of speech is a privilege essential to every free council.
26
Incorporation of such a
privilege in the Indian Constitution was considered desirable that the members of the
Legislatures might not be afraid of speaking their inner minds and thoughts freely and frankly in
the Legislative Chambers. No Member of Parliament shall be liable to any proceedings in any
court of law in respect of anything said or any vote given by him in Parliament. Nevertheless, the
Constitution has not given unrestricted license to speak anything within the four walls of
Legislative Chambers. The freedom of speech is subject to the other provisions of the
Constitution and subject to the rules framed by the House under its power to regulate its internal
procedure.
27

Both the Houses of the Indian Parliament have framed certain rules and have authorized their
Presiding Officers to apply and enforce them. For example, the rules of the procedure of the Lok
Sabha impose numerous limitations upon the freedom of speech of its members and empower the
speaker to take appropriate action directing the members to withdraw from the House;
28
on
ordering his suspension; or ordering the expunction of the offending words from the proceedings
of the House.
29

Besides the Constitution imposes another limitation upon the freedom of speech in Parliament
that no discussion shall take place in Parliament with respect to the conduct of any judge of the
Supreme Court or a High Court in the discharge of the duties except upon a motion for
presenting an address to the President praying for the removal of the judge.
30
It is evident that the

24
Constitution of India 1950, Article 105 (1)
25
Constitution of India 1950, Article 105 (2)
26
Supra note 1
27
Constitution of India 1950, Article 118 (1)
28
Rules of procedure and conduct of, Rule Business in L. S. (5th Ed.), Rule 3 73
29
Rules of procedure and conduct of Business in L. S. (5th Ed.), Rule 374
30
Constitution of India, Article 121
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Members of the Parliament are not given absolute freedom to say anything but their freedom of
speech is hedged with restrictions. Actual experience in India as well as outside has shown that
an ordinary individual has greater freedom, being free from party whips than a member of
Parliament; and the latter has greater freedom outside the House than inside being subject to
rules and standing orders enforced especially in India by over-zealous Presiding Officers.
31

REGARDING SPEECH
Article 105(1) guarantees freedom of speech in Parliament subject of course to the rules and
Standing Orders regulating the procedure of Parliament. What makes Article 105(1) effective
and much more than the right of every citizen to free speech guaranteed by Article 19(1)(a), is
the immunity from the process of the courts in respect of anything said in the House. The
privilege is available not only to the Members of Parliament but also, under Article 105(4) of the
Constitution, to persons like the Attorney General of India or Ministers who are not members but
have a right to speak in the House. The stage has been set for fearless participation in the debates
in the House. In order to claim the immunity, what needs to be shown is only that Parliament was
sitting and that its business was being transacted.
32

The limitations on the privilege regarding free speech in Parliament are few. One limitation
obviously is that the freedom is subject to the constitutional provisions and the rules and
procedures of Parliament. The rules are those framed under Article 118 of the Constitution.
Under Article 121, Parliament cannot discuss the conduct of Judges of the Supreme Court and of
the Judges of the High Court. Even if there is any violation of these limits it would still be a
matter exclusively for Parliament to deal with and the courts would have no jurisdiction to look
into the matter. In view of Article 122, the courts are also explicitly barred from enquiry into the
validity of any proceeding in Parliament. Another exception is of course that Parliament must be
sitting. The privilege cannot, arguably, be stretched to cases of casual conversation in the House.
A member cannot also claim immunity for any speech that he may make outside the House even
if it is a verbatim reproduction of what he has said inside the House. In a case decided by the
United States Supreme Court evidence had been admitted on the authorship, content and

31
K.V. Rao, Parliamentary Democracy of India, World Press Private, 1961
32
Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272
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motivation of a speech made by a member on the floor of the House of Representatives in
pursuance of a conspiracy designed to give assistance in return for compensation. It was
held
33
that the conspiracy conviction was based on an intensive enquiry of the proceedings of the
House and was, therefore, unsustainable. In England, under Section 13 of the Defamation Act, a
member may waive privilege and contest the proceedings.
34
In the absence of a similar provision,
it is doubtful if an Indian court could, in the light of the express bar under Article 105(2),
entertain litigation even in a case of waiver of privilege. So, it is evident that subject to very
minor limitations the privilege under Articles 105(1) and (2) with regard to speech in the House
is complete, conclusive and outside the scope of scrutiny or enquiry by other organs of the State.
REGARDING PUBLICATION
The freedom of publication is available to all persons who may publish reports, etc. of the House
or papers under the authority of the House. For the purposes of Articles 105(1) and 105(2), it is
quite immaterial if the publication was meant for circulation among the Members of Parliament
or for a larger audience. The development of the law in this regard owes much to the case of
Stockdale v. Hansard
35
a book containing defamatory matter was published under the authority
of the House of Commons leading to a suit for damages. The suit was decreed holding that no
privilege is attached to the publication. This led to the framing of the Parliamentary Papers Act,
1840 granting complete privilege to the publications made under the authority of the House.
Articles 105(1) and (2) reflect the march of the English law on the subject.
A word must also be said about the rights of publication in respect of proceedings of the House,
but not under its authority. Such publications obviously do not have the protection of Articles
105(1) and (2). But, an attempt has been made to protect the freedom of the press and thereby
give the public access to the proceedings of the House. The Parliamentary Proceedings
(Protection of Publication) Act, 1956 was repealed during the emergency but re-enacted in 1977
and it covers both publications and broadcasts. Article 361-A was added to the Constitution later
and the protection has since then a much higher status. But, it must be noted that the protection is

33
United States v. Thomas F. Johnson, 15 L Ed 2d 681 : 383 US 169 (1966)
34
Erskine May: Parliamentary Practice (23rd Edn.)
35
(1839) LJ (NS) QB 294
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only of immunity from court proceedings and not from action from the House itself in case it
initiates proceedings for breach of privilege.
In order to qualify for this immunity from civil and criminal proceedings all that is required is
that the publication or broadcast must be a "substantially true report" of the proceedings in the
House. The immunity is lost only if it is proved that the publication was made with malice or if it
related to the proceedings of any secret meeting of the House. In some ways the privilege is
similar to the one conferred on persons reporting court proceedings by the Fourth Exception to
Section 499 of the Penal Code. The privilege could be successfully claimed even in respect of a
part of the debate which alone the reporter finds newsworthy provided that it is a fair report,
untainted with malice.
36

The limits of the privilege with regard to publication can be appreciated with reference to two
cases decided by the Supreme Court. In M.S.M. Sharma v. Sri Krishna Sinha
37
, action was
initiated for breach of privileges in respect of a publication of a speech made in the House that
had been expunged by the Speaker. In Jatish Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee
38
a
member published questions that were disallowed by the Speaker. In both cases, the publications
were found not entitled to any privilege.
REGARDING VOTING
The other privilege expressly conferred by Article 105(2) of the Constitution is the one relating
to the vote by a member in the House. The ramification of having a complete immunity from
court proceedings in respect of the vote in Parliament was felt in JMM case
39
The Supreme Court
was called upon to decide if the constitutional immunity could be applied to the case of an
alleged bribe given to members for exercising their vote in Parliament. The Court by majority
held that the member, the alleged bribe-taker, could not be proceeded against. But, the bribe-
giver and a member, who had not voted but had merely abstained, were found disentitled to any

36
Cook v. Alexander, (1973) 3 WLR 617 : (1973) 3 All ER 1037 (CA)
37
AIR 1959 SC 395
38
AIR 1961 SC 613
39
P.V. Narasimha Rao v. State, (1998) 4 SCC 626
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immunity. The majority were quite unhappy that they had to come to the conclusion that they
did:
"137. We are acutely conscious of the seriousness of the offence that the alleged bribe-takers are
said to have committed. If true, they bartered a most solemn trust committed to them by those
they represented. By reason of the lucre that they received, they enabled a Government to
survive. Even so, they are entitled to the protection that the Constitution plainly affords them.
Our sense of indignation should not lead us to construe the Constitution narrowly, impairing the
guarantee to effective parliamentary participation and debate."
40

Both, the minority and the majority judgments in the case indicate the march of the law in
various countries and the attempts to cut down on the immunity. In particular, reference is found
to the Report of the Royal Commission on Standards in Public Life (chaired by Lord Salmon)
which has stated that "neither the statutory nor the common law applies to the bribery or
attempted bribery of a Member of Parliament in respect of his parliamentary activities" but
"corrupt transactions involving a Member of Parliament in respect of matters that has nothing to
do with the parliamentary activities would be caught by the ordinary criminal law". The report
also notes that investigation into such matters could be too complex, would require special
expertise and be beyond the investigative capacities of the House. A Parliamentary
Commissioner for Standards appointed by the Select Committee of Standards and Privileges can
and does go into the propriety of a member's conduct and deals with allegations of corrupt
payment to members. But, the courts in England still believe that the ordinary criminal courts are
best equipped to deal with bribery cases. Buckley, J. in R. v. Greenway
41
has stated as follows:
"That a Member of Parliament against whom there is a prima facie case of corruption should be
immune from prosecution in the courts of law is to my mind an unacceptable proposition at the
present time. I do not believe it to be the law. The Committee of Privileges is not well equipped
to conduct an enquiry into such a case, nor is it an appropriate or experienced body to pass
sentence. Unless it is to be assumed that it would be prejudiced in his favor, I cannot see that it
would be in the member's own interest for the matter to be dealt with by the Committee. The

40
Ibid
41
"Parliamentary Privilege and the Common Law of Corruption: R. v. Greenway", Public Law, 1998
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courts and legislature have over the years built up a formidable body of law and codes of practice
to achieve fair treatment of suspects and persons ultimately charged and brought to trial. Again,
unless it is to be assumed that his peers would lean in his favour, why should a member be
deprived of a jury and an experienced judge to consider his guilt or innocence and, if appropriate,
sentence? Why should the public be similarly deprived?"
Section 73-A of the Crimes Act, 1914 in Australia and Section 108 of the Criminal Code in
Canada are statutory provisions that make the acceptance of a bribe by parliamentarians, an
offence. The House of Commons, in 1947 and in 1995, has resolved that no member could, for
consideration, reward or fee, raise an issue in the House. Section 14(a) of the Ceylon Bribery
Act, 1954 seeks to punish both the bribe-giver and bribe-taker in case of bribery of judicial
officers and members of either the Senate or the House of Representatives. The provision has
been held to prevail over the privilege claim made by the member.
42
But, the plain words of
Articles 105(1) and (2), that the majority in JMM case9 found compelled to apply, has left little
room for recognising the changes taking place the world over.
The National Commission for review of the Constitution in its report
43
submitted in 2002 has in
fact recommended that Article 105(2) ought to be amended:
"5.15.6. The Commission recommends that Article 105(2) may be amended to clarify that the
immunity enjoyed by the Members of Parliament under parliamentary privileges does not cover
corrupt acts committed by them in connection with their duties in the House or otherwise.
Corrupt acts would include accepting money or any other valuable consideration to speak and/or
vote in a particular manner. For such acts they would be liable for action under the ordinary law
of the land. It may be further provided that no court will take cognizance of any offence arising
out of a member's action in the House without prior sanction of the Speaker or the Chairman, as
the case may be. Article 194 (2) may also be similarly amended in relation to the Members of
State Legislatures."
Perhaps, one limitation on the privilege to vote can be found in the Constitution (Fifty-second
Amendment) Act, 1985 and the anti-defection rules framed there under. The disobedience of the

42
Attorney-General of Ceylon v. De Livera, (1962) 3 All ER 1066
43
Report of the National Commission to Review the Working of the Constitution (Vol.I, March 2002)
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party whip could lead to disqualification of a member. It applies only to voting and not to any
other right of a member like his privilege regarding speech.
44

REGARDING STATUTORY LAW
This brings us to Article 105(3) of the Constitution. The provision has been the cause of a great
deal of confusion, throughout. Article 105(3), as originally framed, provided that until the law
relating to parliamentary privilege is codified, the privileges of the House would be the same as
those of the House of Commons that existed at the commencement of the Constitution. In the
Constituent Assembly Debates, Dr. Ambedkar remarked that South Africa has passed a law and
codified the law of privileges. The provision Article 85(3) of the Draft Constitution was passed
with the hope of framing statutory law within a short time-frame.
45
The criticism even then was
that the provision was vague and that the reference to the law of another country was uncalled
for.
46
No attempt at codification was made by Parliament or the legislatures. After the
Constitution Forty-second and Forty-fourth Amendment Acts of 1976 and 1978 respectively, the
original Article 105(3) has been substituted. The present Article 105(3) preserves the privileges
existing until the coming into force of the Forty-fourth Amendment Act pending legislation on
the subject. The change is cosmetic and in substance the article remains the same. We thus have
a transitory provision in force for decades.
The reluctance to codify the law of privileges appears to be based on a misconception that such
codification would lead to increased interference by the courts. A former Speaker of the Lok
Sabha has stated the following in the course of an article
47
:
"It is provided that the privileges of the parliamentarians may be codified. However, on one hand
there is a pressing demand made by the media persons to make a law, providing for the
privileges, on the other hand, Members of Parliament and most of the Presiding Officers have
opposed the move to codify them on the ground that as the judicial interpretation of the law is the
responsibility of none else but the judiciary. If privileges are codified, the matters would be taken

44
Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.)
45
Constituent Assembly Debates, Vol. 10
46
Constituent Assembly Debates, Vol. 8
47
Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of Constitutional and Parliamentary
Studies, Vol. XXXV, Nos. 1 and 2
17 | P a g e

to the courts and the Members of Parliament and the Presiding Officers would be asked to
subject themselves to the jurisdiction of the judiciary and that would affect the equality between
three wings of the Government and ultimately affect the privileges of the parliamentarians to
express their views without fear or favour."
It must be remembered that Article 122 of the Constitution does expressly bar the jurisdiction of
courts in the affairs of the House. The Court has even refused to enquire into the validity of the
passing of a law on the ground that several members were under preventive detention.
17
But,
parliamentarians appear to be wary that the Court by declaring itself to be the final authority on
the interpretation of the Constitution and the laws would interfere in its functioning. The limits of
parliamentary privilege, particularly in this uncodified scenario have become a matter of law. In
such a situation, it is a moot question if by avoiding codification of the privileges, as
contemplated by the Constitution; greater powers are being retained by Parliament. It does
appear that codification is a distant dream as the first conference of the Chairmen of Committees
of Privileges of Parliament and State Legislatures in India held in 1992, has unanimously
resolved that there should be no codification of privileges.
48
In fact, the Constitution Review
Committee has said that privileges are not meant to be privileges against the people or against
the freedom of the press. It has been recommended as follows
49
:
"5.15.3 ... The Commission recommends that the time has come to define and delimit privileges
deemed to be necessary for the free and independent functioning of Parliament. It should not be
necessary to run to the 1950 position in the House of Commons every time a question arises as to
what kind of legal protection or immunity a member has in relation to his or her work in the
House."
If a law is made in exercise of power under Article 105(3), it would undoubtedly have to satisfy
the test of constitutionality before the courts. The argument that law made in exercise of this
power would be outside the scope of Article 13 of the Constitution has been repelled by the
Supreme Court.
50
But, in the present situation, when no law is made but nonetheless privileges
are claimed and exercised by the House under the latter part of Article 105(3) itself, it puts the

48
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
49
M.N. Kaul & S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.)
50
Special Reference No. 1 of 1964, (1965) 1 SCR 413
18 | P a g e

fundamental rights of the citizen under peril and leads to disputes and judicial adjudication. The
courts are forced to enter an arena that they would normally avoid.
Outside the scope of these privileges, the Constitution itself prefers not to describe other
privileges but simply say - "In other respect, 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 from time to time be defined by Parliament by law, and, until so defined, shall be those of
the House of Commons of Parliament of the United Kingdom, and its members and committees,
at the commencement of the Constitution.
51

The Parliament and State Legislatures have not done anything so far to define or codify their
privileges as stipulated in the Constitution but are claiming all such privileges of the House of
Commons which are nowhere codified and are a part of the Common Law of England.
The words 'powers, privileges and immunities' occurring in this article of the Constitution have
evoked keen controversy in the country since the inception of the Constitution. It has been
interpreted with varying meanings by the various Legislatures and Courts in India. This perhaps
is one of the most controversial cause in the Constitution which seeks to link and intend to place
on parity the privileges and immunities available to the members of Parliaments in the two
countries. Such an analogy for linking the powers, privileges and immunities of the House of
Commons with the Indian Legislatures is fraught with danger and it may even undermine the
very foundation of our Constitutional System. It is crystal clear that the Political Structure of
India does not wholly correspond to the Parliamentary Democracy practiced in Britain and the
Governmental systems of the two countries are poles apart. Parliamentary privileges should be
analyzed in two countries keeping always in view the diversities existing in the respective
countries. One of the cardinal differences which apparently come to our notice is the very
foundation of the Constitutional edifice in U.K. and India.


51
Constitution of India, Article 105(3)
19 | P a g e


THE CONTROVERSY


In India the democratic values enshrined in the constitution and the guaranteed fundamental
rights of citizens have on several occasions clashed with the parliamentary privileges. One such
instance is in M. S. Sharma v. Shrikrishna Sinha
52
the question was whether publication of
expunged portions of Parliamentary proceedings amounted to contempt. The issue directly
before the Supreme Court was whether what was the impact of Article 19(1) (a) and Article 21
on the provisions of Article 194(3). It was held that if a law prescribing the powers privileges,
and immunities is enacted, either by Parliament or State legislature, that law would be subject to
Article 13 of the Constitution and would be void to the extent it contravened the fundamental
rights contained in Part III.

PARLIAMENT SOVEREIGNTY AND CONSTITUTIONAL DEMOCRACY

Though we have adopted Parliamentary System of Government, according to English model our
Parliament is not a sovereign body just like the English Parliament. The most outstanding feature
of the British system of Government, is the sovereignty of Parliament. Parliament under the
English Constitution has the right to make and un-make any law whatever, and further no person
or body is recognized by the law of England as having a right to override and set aside the
legislation of Parliament.
53
The Constitution has assigned no limits to the authority of Parliament
over all matters and persons within its jurisdiction. A law may be unjust and contrary to the
principle of sound government: But Parliament is not controlled in its discretion and when it errs,
its errors can be corrected only by itself.
54
This fact led De-Lolme to remark that the British
Parliament can do everything but make a man a woman and woman a man.

52
1959 AIR 395
53
Dicey, A.V. Introduction to law of Constitution, 1948
54
D.D.Basu, Introduction to the Constitution of India (3rd Ed) 1964
20 | P a g e

But in India we have completely rejected this concept and have not given blank cheque to
Parliament as we felt that "Assemblies can be no less tyrannical and no less unscrupulous than
individuals."
55
Ours is a constitutional democracy which very clearly embodies the principles of
limited government Political Institutions are always the product of the peoples' genius, customs,
habits and its history. The framers of the Constitution were fully aware of the past history of
India and particularly with the rule of the British Colonial Government which was the very
definition of tyranny. The new Constitution was to be modeled in a different pattern assuring the
citizens the fruits of liberation, which paid heavy price for their freedom. Parliament in India
enjoys certain powers and it cannot claim any supremacy over the citizens who are its masters.
Indian Parliament is the creature of the Constitution of India and its powers, right, privileges and
obligations have to be found in the relevant articles of the Constitution. It is not a sovereign
body, un-controlled with un-limited powers. The Constitution has conferred on the Indian
Parliament power to make laws in respect of matter specified in the appropriate places and
schedules, and curtailed its rights and powers under certain other articles and in particular by the
articles dealing with Fundamental Rights.
56
The Constitution did not envisage that the privileges
of the Legislatures in India shall be "same" as those of the House of Commons. This logic of
equating them is very unsound. Even if we interpret broadly, privileges of the Legislatures are
subject to the scrutiny of the courts, since the "privileges granted are those of the House of
Commons," and they need to be ascertained. Secondly privileges existing at the time of
commencement of the Constitution are relevant and have to be determined by the courts.
Although there are certain decided cases which seeks to lay down general principles governing
the parliamentary privileges in England but it looks very odd and curious to bind the courts in
India with the views of Courts in England in those matter. It can thus do whatever it likes except
what is physically and naturally impossible. Every act of Parliament is constitutional and the
courts have simply to apply law was passed by Parliament. Thus the consequence of the
supremacy of Parliament is that the English Courts have no power of judicial review. It cannot
declare any law as constitutional or void.

55
M. G. Gupta: Aspects of Indian Constitution, 2nd edition 1964
56
Supra note 54
21 | P a g e


FUNDAMENTAL RIGHTS AND PARLIAMENTARY PRIVILEGES

The Constitution of India incorporates most elaborate declaration of human rights and opens a
new saga of freedom to the Indians who suffered under the British Colonial Rule over three
centuries. These rights include all the basic liberties such as freedom of speech, movement and
association, equality before law and equal protection of laws, freedom of religious belief and
cultural and educational freedoms.
57

The Founding Fathers including those Fundamental Rights have adhered to the American
concept of 'limited government.' Fundamental Rights place limits on state action and
categorically lay down the principle that these rights are available against the state i.e. no organ
of the state - executive, legislature and judiciary can act in contravention of such rights. The
doctrine of Fundamental Rights, implying that government exists for the sake of individual
whose freedom and happiness are considerations of paramount importance seems to be firmly
laid down in our Constitution. These rights are fundamental in the sense that they have been
incorporated in the fundamental law of the land - a law which can be changed according to a
special procedure contained in the Constitution itself.
Indian Constitution guarantees certain rights and the people cannot claim anything beyond them.
They are not absolute but the Constitution itself imposes certain restrictions on them. They are
subject to the interest of the people and safety of the state. In some cases, limitations have been
laid down in the Constitution itself. In other respects, Parliament has been given the power to
impose further restrictions. Thus it is evident that the rights are changeable arid can be modified
by Parliament subject to provisions of the Constitution. But who has to judge whether a citizen
has over-stopped the limits so as to endanger the safety of the state; whether Parliament by
making a law has exceeded its legislative competence; whether the law in question conforms to
certain fundamental principles relating to the rights, and whether the Law is good. On these
issues even the Constituent Assembly was found in two difficult situations. One was to give the
judiciary the authority to sit in judgement over the will of the Legislature and to question the law

57
Chapter III of Indian Constitution, 1950 Articles 13 to 35
22 | P a g e

made by it on the ground that it was not good. The other was that the Legislature might be
entrusted not to make bad laws.
On the one hand, there is the possibility of a Legislature packed by party men making laws
which may abrogate or violate what may be regarded as certain basic principles affecting the life
and liberty of individual. On the other hand, it is difficult to see how five or six gentlemen sitting
in the Supreme Court can examine laws made by the Legislature, and guided by their own
individual conscience, bias, prejudice, social and intellectual climate and experience be trusted to
determine which law is good and which law is bad
58
.
Are Parliamentary privileges more fundamental than Fundamental Rights? The answer is in the
negative. The Supreme Court in Special Reference No. 1 of 1964,
59
ruled that the fundamental
rights guaranteed under Article 32 cannot be overridden by parliamentary privileges. This
contradiction has raised a piquant situation where, as Seervai
60
has succinctly pointed out, one
privilege (right to prohibit publication) is not overridden by one fundamental right (Article
19(1)(a)), on the other hand another privilege (right of committal) is subject to another
fundamental right (Article 32).1 Thus the issue of fundamental rights vis-a-vis parliamentary
privileges has raised many controversial debates before us as to which one will prevail over
another and has concomitantly raised the question of codification of parliamentary privileges.
Fundamental Rights are the basic rights which form a part of the Supreme Constitution and the
privileges which are to be enjoyed by the representatives of the Sovereign people have to run
counter to them. The Constitution has assigned the Judiciary twin task of constructing the
provision of the Constitution and of safeguarding the Fundamental Rights of the citizens. The
privileges and immunities of Parliament and of its members constitute an important part of their
inherent rights under the Constitution and are designed to enable them to discharge their
functions as representatives of the people. They are however meant for that purpose and nothing
more.
61
They are all citizens first and legislators later and if they themselves, in their self-
interest, begin to attack the basic human right of citizens, it is nothing short of totalitarianism.
The essence of our constitutional system is the establishment of just social order and the creation

58
Supra note 54
59
Article 14 and 32 of Indian Constitution, 1950
60
Supra note 55
61
Ram Singh V. The state of Delhi and Another (1951) S. C. R. 451
23 | P a g e

of Welfare Society upholding the dignity of the individual and the honor of the nation. All the
organs of the State have to work in harmony and in collaboration to realize all these lofty ideals
to which the nation is dedicated

THE FRENCH MODEL

In the French system members enjoy the critical immunity of freedom of speech, but the
expression of the immunity is different from the British model. There are differences in respect
of the immunity of members persons and significantly in respect of the ability to punish
contempt.

FREEDOM OF SPEECH

Members of the French Parliament have long been immune from action on account of their
statements in Parliament. The relevant term is best translated into English in this context as non-
accountability.
62
The Clerk of the French Senate has observed that this immunity was a legacy
of a tradition created over past centuries by the British Parliament.
63
The effect of the immunity
is that members cannot be prosecuted or tried elsewhere on account of their statements or votes
in Parliament.
64
It has been set out in successive French constitutions, Article 26 of the 1958
Constitution providing: No Member of Parliament may be prosecuted, searched for, detained or
be subject to judgment on the basis of opinions of opinions expressed or votes cast by him in the
exercise of his duties.
65
Courts have been required to determine issues such as whether the
repetition outside parliament by members, or by broadcast, of remarks made in Parliament are
protected by force of this provision (they have been found not to be protected).
66
It is notable that
the form of words No Member may be prosecuted is in contrast to the Bill of Rights with

62
Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments
(ASGP) meeting 17-19, October, 2005,
http://www.asgp.info/Resources/Data/Documents/MSUMEOMVPXKTACUJDEWNDNORPOBTYP.pdf.
63
Ibid
64
Ibid
65
Ibid
66
Ibid
24 | P a g e

its reference to the activity proceedings in Parliament. This may mean that questions such as
whether other persons (for example committee witnesses) were covered by the immunity were
more open there. In the event, however, court decisions have recognized the protection of
Witnesses.
67


FREEDOM FROM ARREST

In France the immunity of the members person has been recognized since the formation of the
National Assembly, on 23 June, 1789 the Assembly declaring the person of each deputy shall
be inviolable.
68
The justification of such a provision is the protection of deputies from actions
by the crown/executive.
69
Thinking on the extent and application of the immunity has apparently
developed considerably, in the last several years particularly with regard to the interests (and
tolerance) of others.
70
One constant element has remained: Parliament has had a role in the
application of the immunity. In essence, and other than in criminal cases, where a member is
captured red-handed or in respect of final sentencing, parliamentary approval is required for the
arrest or detention of a member.
71
The approval is given by the Bureau (Managing Group) of the
House. One advantage of this is that confidentiality may be maintained, at least for a period.

An indication of the political and parliamentary sensitivity of these matters is given in the
statement of one Senator: To gnaw at inviolability is to hand over parliamentarians to the
vengeance and arbitrary decisions of those who, with complete impunity, profit from the
weakness of a state terrorized by excessive media coverage in order to set themselves up as a
power independent of the law itself and to launch a concerted attack on the authorities and
principles of the Republic. One can even bar parliamentarians from attending sittings on the
grounds that they have to answer judges summons.
72



67
Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000
68
Ibid
69
Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments
(ASGP) meeting, 17-19 October 2005,
http://www.asgp.info/Resources/Data/Documents/MSUMEOMVPXKTACUJDEWNDNORPOBTYP.pdf.
70
Ibid
71
Ibid
72
Ibid
25 | P a g e

PUNISHMENT FOR OFFENCES

Despite their authority in matters such as the immunity of members persons, the houses of the
French Parliament have never enjoyed the broad capacity to punish offences (contempt)
possessed by the House of Commons.
73


CONCLUSION

Certainty of privileges is the requirement of the day. The past privileges of the House of
Commons cannot be allowed to control the Indian present and future. But there seems to be two
great handicaps associated with the codification of privileges. This was brought out by former
Speaker of parliament, Mavalankar
74
at a conference of presiding officers. According to him:

1) The legislative will codify only those privileges that are acceptable to the executive
government of the day which would command majority in the legislature. But Privileges should
not be with reference to this party or that party which is ruling but should be with reference to all
the members. The net result would be a curtailment of privileges.
2) Codification will crystallize privileges, and there will be no scope to widen or change the
same by interpretation of privileges as they exist in the British Parliament. Today there is an
opportunity of adapting the principles, on which the privileges exist in U.K., to conditions in
India.
But keeping in view the larger public interest and democratic values, the anticipation of the
curtailment of few privileges on its face are too weak and fragile to be sustained.


73
Supra note 67
74
Shubhankar Dam, Presidential Legislation In India: the Law and Practices of Ordinances , Cambridge University
Press, 2014
26 | P a g e


BIBLIOGRAPHY

CASES
Attorney-General of Ceylon v. De Livera .................................................................................... 12
Canada (House of Commons) v. Vaid ............................................................................................ 3
Cook v. Alexander ........................................................................................................................ 10
Indira Nehru Gandhi v. Raj Narain ............................................................................................... 15
P.V. Narasimha Rao v. State ......................................................................................................... 11
R. v. Greenway ............................................................................................................................. 12
Ram Singh V. The State of Delhi and Another ............................................................................ 20
Special Reference No. 1 of 1964, (1965) 1 SCR 413 ................................................................... 15
Tej Kiran Jain v. N. Sanjiva Reddy, ............................................................................................... 9
United States v. Thomas F. Johnson ............................................................................................... 9
STATUTE
Constitution of India 1950 .............................................................................................................. 7

BOOKS
Constituent Assembly Debates ..................................................................................................... 13
D.D.Basu, Introduction to the Constitution of India (3rd Ed) 1964 ............................................. 17
Dicey, A.V. Introduction to law of Constitution, 1948 ................................................................ 17
Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues ...................... 2
K.V. Rao, Parliamentary Democracy of India, World Press Private, 1961 .................................... 8
M. G. Gupta: Aspects of Indian Constitution, 2nd edition 1964 .................................................. 17
M.N. Kaul & S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.) ........................... 15
Seyed Doraid Mousavi Mojab, A Review of Parliamentary Privilege with an Approach to Iranian
Legal System, .............................................................................................................................. 4
14
27 | P a g e

Shubhankar Dam, Presidential Legislation In India: the Law and Practices of Ordinances ,
Cambridge University Press, 2014 ............................................................................................ 22
Vgl. Hans-Peter Schneider,Verfassungsgerichtsbarkeit und Gewaltenteilung, Neue Juristische
Wochenschrift (NJW) 1980, S. 2103. ......................................................................................... 5
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THE FEDERALIST No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) ...................... 1
RULES
Rules of procedure and conduct of, Rule Business in Lok Sabha (5th Ed.), .................................. 8
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E May, Parliamentary Practice, 16th edn. (London, Butterworth) ................................................. 1
Anirudh Prasad, "Jurisprudential Study of Legislative Privileges in India", Journal of Bar
Council of India, Vol. 16 (3&4): 1989 ........................................................................................ 1
C.F. Padfield., Law Made Simple, 7th ed., England, Made Simple Books, 1988 .......................... 4
CR Munro, Studies in Constitutional Law, London, Butterworth, 1987 ........................................ 3
D.D.Basu: Commentary on the Constitution of India ..................................................................... 2
Keenan, Denis, Smith and Keenans English Law, 13
th
ed., England, Longman, 2000 ................. 5
M. G. Gupta: Some Aspects of Indian Constitution (2nd Ed.) ....................................................... 2
Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General
of Parliaments (ASGP) meeting 17-19, October, 2005 ............................................................. 20
Pachauri, The Law of Parliamentary Privileges in UK and in India, 1stedn., (N.M. Tripathi Pvt.
Ltd., Bombay, 1971 ..................................................................................................................... 1
R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and
Procedures, .................................................................................................................................. 3
Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of Constitutional
and Parliamentary Studies, Vol. XXXV, Nos. 1 and 2
Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.) 13

28 | P a g e

REGULATIONS
C.A.D. Vol. VI ................................................................................................................................ 7

REPORT
Report of the National Commission to Review the Working of the Constitution (Vol.I, March
2002).......................................................................................................................................... 13