by Siddharth Jain
Understanding Parliamentary/Legislative privilege
Parliamentary privilege is a legal prerogative enjoyed by the members of the two Houses and their committees, which also includes the Attorney General and Union Ministers. However, it is pertinent to mention that the parliamentary privileges are denied to the President. In India, the privileges find their sanction in Article 105 of the Constitution which states that a member of parliament has freedom of speech and that a member will not be held liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. Such liberty has been bestowed to the parliamentarians so that the issues of public governance can be addressed quickly, efficiently and without any fear of scrutiny. The language of Art. 105 functions mutatis mutandis to Article 194, however, Art. 194 address the Legislature of the State instead of the Parliament. The privileges categorized in these articles are non-exhaustive, only a few have been enumerated and for the rest, the privileges given are on the lines of privileges of the House of Commons (mention of House of Commons has not been explicitly stated after the 42nd amendment).
The immunities as given under Art. 105 (and also Art. 194) briefly include (to name a few) freedom of speech, immunity from civil and criminal proceedings and publication of proceedings through electronic or print media. The concept of parliamentary privilege in India is analogous to the privileges enjoyed by the members of the House of Commons in Britain. The Constitution framers felt the pressing need of providing privileges to the parliamentarians because India being a diverse country faced problems of all sorts which needed to be addressed from the floor, and thus, the sanctity of the debates in the parliament had to be kept intact. This called for a conducive environment for unrestricted and open debate and a democratic mechanism would only operate as long the elected representatives are allowed to work and discharge responsibilities freely, without any fear of judicial proceeding.
Consequences of a breach
There is no conclusive legislation to define privileges and resultantly, the punishments for the breach are also not definite. The power to castigate an offender rests with the committee on privileges, which in the past has fined the wrongdoer, left the wrongdoer with a mere warning or in some rare cases ordered imprisonment, depending upon the gravity of the offense. Lack of codification of privileges and its breach leaves this subject in the limbo.
Freedom of Speech vs. Parliamentary Privileges
Though the privileges were borrowed from the British parliament, the Indian lawmakers couldn’t replicate the execution of the same law. The British parliamentarians enjoyed an unqualified privilege against the press by restricting the publication of proceedings and debates of the house and the ones who breached such privilege were punished accordingly. However, since the early 19th century, the House of Commons has hardly ever used the prerogative to punish someone for publishing parliamentary debates and reports. In England, an honest and truthful publication of the debates has been allowed so that the stake-holding public is aware of the developments going on in the country and the government’s response to such developments. On the contrary, the Indian courts still attend to a plethora of cases where a newspaper reporter or an editor is held guilty for publication of on-going debates in the parliament, regardless of its authenticity.
The press naturally finds this proposition upsetting since this is an apparent encroachment of its right to free speech & expression. Media houses are restricted from publishing debates, proceedings, commentaries and even opinions. The Supreme Court in the Searchlight case held that judicial review cannot be appealed against an order under Article 105/194. Also, by applying the theory of harmonious construction the court arrived at the conclusion that Article 19(1)(a) shall be subservient to privileges under article 105 and 194. Later on, in the case of Keshav Singh the Apex court explained that Article 21 would have an overriding effect on the privileges and similar stance was held in Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha & Ors.. Sadly, neither of these judgements addressed Article 19(1)(a) and the precedent established under the Searchlight case still holds ground, meaning that parliamentary privileges overpower the right to freedom speech and expression of the press.
It is obvious that the government in power would label any publication for breach of privilege if it finds it distasteful. This clearly shows the arbitrariness with which the press is punished for doing its work which it is legally entitled to do under Art. 19(1)(a).
It is an established fact that the legislative privileges have done more harm than good as the politicians have abused this power to seek protection from the offences of bribery, defamation, etc.for a long time.
It would be childish to expect the legislators to give-up their immunity voluntarily as doing so would make them subject to judicial review. Jurists and press organizations have been fighting against this dog law, but for no good. Even the judiciary has shown reluctance in interfering with the functioning of the parliament. But the Supreme Court needs to change its stance now. It should pressurize the legislative to codify and then adopt parliamentary privileges, and this should be done at the earliest, or the court should announce the verdict on a case-to-case basis (merits of the case) if a case regarding legislative privilege ever comes to its door.
The current state of affairs would not reach a resolve until a codified law is in place which would define the privileges, what would constitute their breach and what would be the consequences of such breach. Such codification would not only delimit the arbitrary powers of the parliamentarians but would also provide greater autonomy to the press and media thus, safeguarding their right to freedom of speech and expression. This would result in a more transparent and accountable government which would ultimately restore public faith in government institutions.
Its time India gave up or delimited the immunities bestowed to the parliamentarians, as done by its international counterparts such the USA, Britain or even Australia. This would provide a safe space for discussion and argument on government policies, an autonomous and free press and a better democracy.
the author is a second-year law student at RGNUL, Punjab.
 Art.105, Constitution of India
 Sanjay R. Hegde &Pranjal Kishore, When freedom of the press is subject to Assembly privilege (February11, 2020, 12:52 A.M.), https://indianexpress.com/article/opinion/when-freedom-of-the-press-is-subject-to-assembly-privilege-4723471/
Shivprasad Swaminathan, The Conflict Between Freedom of the Press and Parliamentary Privileges: An Unfamiliar Twist in a Familiar Tale, National Law School of India Review 123, 124 (2010).
M.S.M. Sharma v. Srikrishna Sinha, AIR 1959 SC 395.
In Re Presidential Reference under Article 143 of the Constitution, AIR 1965 SC 750.
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Ors., (2007) 3 SCC 184.
Faizan Mustafa, Bringing the House up to date (February 11, 2020, 12:31 P.M.), https://www.thehindu.com/opinion/op-ed/bring-the-house-up-to-date/article19253239.ece