The Privileges of Members of Parliament

• 10 Aug 2022

For Prelims: Vice President of India, Enforcement Directorate (ED), Central Bureau of Investigation (CBI), Income Tax department (IT), Article 105

For Mains: The Privileges of Members of Parliament

Why in News?

Recently, the Vice President of India highlighted the wrong assumptions of Members of Parliament about the Parliamentary privileges, that action can’t be taken against them by investigating agencies during a Parliamentary session.

• There have been protests by some political parties against the alleged misuse of central agencies like the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), and the Income Tax department (IT) by the government to frame political rivals.

What are the Parliamentary Privileges?

• About:
  • Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
    • These privileges are defined in Article 105 of the Indian Constitution.
  • Under these privileges, the members of Parliament are exempted from any civil liability (but not criminal liability) for any statement made or act done in the course of their duties.
    • The privileges are claimed only when the person is a member of the house. 
    • As soon as s/he ends to be a member, the privileges are said to be called off.
  • Parliament has not made any special law to exhaustively codify all the privileges. They are rather based on five sources:
    • Constitutional provisions
    • Various laws made by Parliament
    • Rules of both the Houses
    • Parliamentary conventions
    • Judicial interpretations
• Privileges:
  • Freedom of Speech in Parliament:
    • The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament. 
    • It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulate the proceedings of the parliament.
    • Limitations:
      • Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
      • Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court. 
  • Freedom from Arrest:
    • The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session. 
    • No member can be arrested from the limits of the parliament without the permission of the house to which s/he belongs so that there is no hindrance in performing their duties.
    • If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.
      • But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention act, the Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any such act.
  • Right to Prohibit the Publication of Proceedings:
    • Article 105(2) of the Constitution, no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house. 
      • For paramount and national importance, it is essential that the proceedings should be communicated to the public to aware them of what is going on in the parliament.
  • Right to Exclude Strangers:
    • The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house.

What Did the Vice President Hold?

• According to the Vice President under the Article 105 of the Constitution, the Members of Parliament enjoy certain privileges so that they can perform their parliamentary duties without any hindrance.
  • One of the privileges is that a Member of Parliament cannot be arrested in a civil case, 40 days before the commencement of the Parliamentary session or Committee meeting, and 40 days thereafter. 
    • This privilege is already incorporated under Section 135A of the Civil Procedure Code, 1908.
  • However, in criminal matters, Members of Parliament are not on a different footing than a common citizen. 
    • It means that a Member of Parliament does not enjoy any immunity from being arrested in a criminal case, during the session, or otherwise.

What is the View of Supreme Court?

• The Supreme Court in the State of Kerala Vs. K. Ajith and Others (2021), observed, that “privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”
• In July 2021, the Supreme Court rejected Kerala government’s plea to withdraw criminal cases against its MLAs who were charged in the assembly.
  • The Supreme court stated that Parliamentary Privileges are Not Gateways of Immunity and the legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.

Way Forward

• The Parliamentary privileges are conferred on the members for the smooth functioning of the parliament. But these rights should always be in conformity with the fundamental rights because they are our representatives and work for our welfare. 
  • If the privileges are not in accordance with the fundamental rights, then the very essence of democracy for the protection of the rights of the citizen will be lost. 
• It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. The members should also use their privileges wisely and not misuse them. 

Source: TH