Parliamentary Privileges and Immunities | 09 Jan 2025

 What are Parliamentary Privileges and Immunities? 

• About: 
  • Parliamentary privileges and immunities refer to the special rights, freedoms, and exemptions granted to members of Parliament (MPs) and members of state legislatures in India to enable them to perform their duties efficiently and without interference.  
  • These privileges ensure the independence, dignity, and effective functioning of legislative institutions in a democratic framework. 
• Origin: 
  • Parliamentary privileges in India trace their roots to the Charter Act, 1833 and evolved through the Government of India Act, 1935, which granted legislators freedom of speech. 
• Sources of Parliamentary Privileges: 
  • Constitution of India: 
    • Article 105: Article 105 grants MPs freedom of speech, immunity from court proceedings for actions in Parliament or its committees, and empowers Parliament to define privileges by law. 
    • Article 122: Article 122 bars judicial review of parliamentary proceedings on grounds of procedural irregularities. 
    • Article 194: Article 194 provides state legislators freedom of speech and immunity for actions in the legislature, with the power to define privileges through laws. 
    • Article 212: Article 212 prohibits courts from questioning state legislative proceedings due to procedural irregularities. 
  • Parliamentary Conventions (based on British parliamentary practices as of 1947). 
  • Statutory Laws (laws enacted by Parliament). 
  • Rules of Procedure and Conduct of Business (Lok Sabha and Rajya Sabha). 
  • Judicial Interpretations (Supreme Court and High Court rulings). 
• Key Features: 
  • Its purpose is to safeguard members from external pressures and legal liabilities while performing their parliamentary functions. 
  • These privileges are co-terminus with membership, meaning they cease once the individual ceases to be a member of the legislature. 
  • They extend to individual members and the collective institution (House). 

What are the Parliamentary Privileges Enjoyed by MPs and MLAs? 

• Individual Privileges: 
  • About: 
    • Individual Privileges refer to the rights and immunities enjoyed by MPs and members of  State Legislature to enable them to perform their duties without fear of interference or prosecution. 
  • Privileges: 
    • Freedom of Speech: Members have the right to freely express themselves in Parliament (Article 105(1)). 
    • Immunity from Legal Proceedings: Members are protected from court action for anything said or any vote cast in Parliament or its committees (Article 105(2)). 
    • Protection for Publications: No court proceedings can be initiated against individuals for publishing reports, papers, votes, or proceedings authorized by Parliament (Article 105(2)). 
    • Exemption from Judicial Inquiry: Courts cannot question the validity of parliamentary proceedings on grounds of procedural irregularities (Article 122(1)). 
    • Freedom from Arrest: Members are exempt from arrest in civil cases during sessions, as well as 40 days before and after the session (Section 135A, Code of Civil Procedure, 1908). 
• Collective Privileges: 
  • About: 
    • These are the rights and immunities enjoyed collectively by the Indian Parliament and State Legislature, as well as their members and officers. 
  • Privileges: 
    • Publication Rights: Parliament can publish its reports, debates, and proceedings, and restrict others from doing so.  
      • The 44^th Amendment Act, 1978, allows the press to publish accurate reports of parliamentary proceedings without prior approval, except during secret sittings. 
    • Secret Sittings: Parliament can exclude strangers and hold confidential discussions on critical matters. 
    • Rule-Making Authority: It can establish rules for its procedures and business conduct, including adjudication of related matters. 
    • Disciplinary Powers: Parliament can punish members or outsiders for breaches of privilege or contempt through reprimand, admonition, imprisonment, suspension, or expulsion. 
    • Right to Information: It has the right to be informed immediately about the arrest, detention, conviction, imprisonment, or release of its members. 
    • Inquiry Powers: Parliament can conduct inquiries, summon witnesses, and demand relevant papers and records. 
    • Judicial Immunity: Courts cannot question parliamentary proceedings or its committee activities. 
    • Protection of Premises: Arrests or legal actions cannot be carried out within the premises of Parliament without the presiding officer's permission. 

What is the Breach of Privilege and Contempt of House? 

• Breach of Privilege: 
  • A breach of privilege occurs when an individual or authority disregards or undermines the privileges of a member or the House.  
  • It includes offenses like disobedience to the House’s legitimate orders or defamatory actions against the House, its members, committees, or officers. 
  • Such breaches are punishable. 
• Contempt of the House: 
  • It is distinct from breach of privilege and it refers to any act or omission that obstructs the House, its members, or officers in performing their duties.  
  • It includes defamatory speeches or writings about the House or its members, questioning the impartiality of the Chair, or publishing expunged proceedings. 

What is the Process to Raise a Question of Privilege? 

• Authority: Only Parliament can determine breaches of privilege or contempt; courts have no jurisdiction. 
• Procedure: 
  • A member can raise a breach of privilege with the Chairman of RajyaSabha / Speaker of Lok Sabha consent. 
  • If consent is granted, the House may decide on the matter or refer it to the Committee of Privileges (10 members in Rajya Sabha, 15 in Lok Sabha). 
  • Functioning of the Committee of Privileges: 
    • The Committee examines referred matters to determine if a breach of privilege occurred, its nature, and the circumstances. 
    • A report with recommendations is presented to the House by committee. 
    • After a motion to consider the report, the Committee moves for the House to accept or reject the recommendations. 
    • Further action is based on the House’s decision, implemented if the resolution is unanimously passed. 
• Chairman’s Role: The Chairman can also refer matters suo-motu to the Committee or conduct an independent inquiry and inform the House. 
• Restrictions: Only one privilege question can be raised per sitting, focusing on a specific, recent matter. 
• Punishment for Breach of Privilege: 
  • Once the House determines the punishment for a breach of privilege, it may include measures such as reprimand, warning, or imprisonment, with custody restricted to the duration of the House session. 
  • For guilty MPs, penalties can include suspension or expulsion. 
• Notable Case: 
  • In 1978, former Prime Minister Indira Gandhi was found guilty of breach of privilege and contempt by the Lok Sabha privileges committee. She faced expulsion from Parliament and imprisonment for allegedly harassing government officials. The resolution was later rescinded in 1981. 

What are the Key Judgments Related to Parliamentary Privileges? 

• P.V. Narasimha Rao vs. State (CBI/SPE), 1998: The Supreme Court (SC) ruled that lawmakers who accepted bribes could not be prosecuted for corruption if they voted or spoke in the House as per the agreement tied to the bribe. 
• State of Kerala vs. K. Ajith and Others, 2021: The SC clarified that parliamentary privileges and immunities do not provide exemptions from general laws, including criminal laws applicable to all citizens. 
• Sita Soren vs. Union of India, 2024: The SC overturned the 1998 PV Narasimha Rao judgment  which had established immunity for Members of Parliament and Legislative Assemblies who accepted bribes for casting votes.  
  • The SC emphasized the detrimental impact of bribery on democratic principles and governance, and ruled that the immunity under Articles 105 and 194 does not extend to cases of bribery, which is a separate criminal act unrelated to the core duties of lawmakers. 

What are the Criticism of Parliamentary Privileges? 

• Lack of Transparency: Parliamentary privileges are often invoked through non-transparent processes, limiting public oversight and undermining confidence in the legislative system. 
  • This obstructs efforts to hold legislators accountable, both within legislative proceedings and in their public conduct. 
• Potential for Misuse: Legislators have occasionally exploited privileges to evade legal accountability or suppress dissent, using freedom of speech within the legislature to make inflammatory or baseless statements. 
  • Mechanisms to monitor and regulate the use of privileges are insufficient, increasing the risk of abuse and eroding trust in legislative processes. 
• Ambiguity in Scope: The unwritten nature of many privileges leads to inconsistent interpretations and applications, creating uncertainty and scope for arbitrary decisions. 
• Conflict with Equality: Privileges such as immunity from arrest can be seen as inconsistent with the principle of equality before the law, granting legislators undue protection. 
• Outdated Practices: Some privileges, rooted in colonial-era traditions, no longer align with modern democratic ideals of transparency and public accountability. 

What are the International Practices on Parliamentary Privileges? 

• United Kingdom:  
  • The UK Parliament enjoys privileges such as freedom of speech, immunity from arrest, and the authority to regulate its own proceedings. These are derived from a combination of statutes, common law, and precedents. 
• Canada:  
  • The Canadian Parliament grants members privileges like freedom of speech, immunity from arrest, and the power to address breaches of privilege.  
  • These are defined under the Constitution Act, 1867 and the Parliament of Canada Act, 1985. 
• Australia:  
  • Parliamentary privileges are enshrined in the Constitution. Legislators enjoy freedom of speech, immunity from arrest, and the right to regulate parliamentary proceedings, adhering to principles similar to those in the UK and Canada. 

 What are the Challenges Associated with Parliamentary Privileges? 

• Risk to Parliamentary Autonomy: Codification could undermine the legislature's independence by subjecting parliamentary affairs to judicial scrutiny or executive interference, thus eroding the separation of powers. 
• Contradicts Constitutional Provisions: Article 122 of the Constitution prohibits courts from inquiring into parliamentary proceedings, ensuring legislative autonomy. Codifying privileges could dilute this protection by allowing legal challenges to parliamentary matters. 
• Loss of Flexibility: Parliamentary privileges are flexible and allow legislators to adapt to emerging issues. Codification could impose rigid rules, reducing the legislature's ability to respond to evolving political dynamics. 
• Complexity and Lengthy Process: Codification would require extensive discussions among lawmakers, legal experts, and civil society, making it a time-consuming and complex process. 

Way Forward 

• Responsible Utilization: Legislators must exercise privileges judiciously, refraining from misuse for personal or political gains. Inflammatory remarks, baseless allegations, or actions undermining decorum should be strictly avoided. 
• Respect for Rights: Parliamentary privileges should not infringe on the rights and dignity of individuals. Legislators must avoid using privileges to intimidate, harass, or engage in discriminatory behavior. 
• Transparency and Accountability: Lawmakers should maintain transparency in invoking privileges, clearly articulating their reasons and being prepared to justify their actions. This fosters public trust and strengthens legislative credibility. 
• Adherence to Parliamentary Procedures: Strict compliance with established parliamentary rules and standing orders is essential. It is necessary to ensure impartiality and fairness in the invocation and enforcement of privileges, upholding the sanctity of legislative processes. 
• Capacity Building and Awareness: Training programs and regular sensitization sessions on the scope, limits, and ethical use of parliamentary privileges can help legislators better understand and uphold their responsibilities.