CODIFICATION OF PARLIAMENTARY PRIVILEGES:- COMPARATIVE STUDY AND PROPOSAL TO REFORM

I. INTRODUCTION AND HISTORICAL EVOLUTION

1.1. Parliamentary Privilege- its conception and need

Parliamentary privileges are basic rights and privileges enjoyed by the legislative bodies, members and committees. These privileges are not the personal rights but are based on the institution, protecting its administration, prestige, and power. They allow law-makers to express themselves with ease, make strong arguments, and hold the executive responsible without having to fear interference or retaliation by other people. The essence of a representative democracy depends upon the fact that the elected representatives will be allowed to carry out their activities freely and it is this unobstructed operation which the world of parliamentary privileges aims at guaranteeing. In the absence of such safeguards, the legislative process may be vulnerable to unwarranted influence, cajoling, or even stalling hence compromising the democratic process.

1.2  Development of the British Parliamentary Practice

Indian parliamentary privilege owes a lot to the British history of the parliament. The House of Commons within the British Parliament is the institution that over centuries developed a number of privileges to claim the independence on the Crown and the courts. Freedom of speech and absence of arrest, among others, were these privileges and they played a pivotal role in making the Parliament supreme. In the “United Kingdom, as in the Bill of Rights 1689”[1], some of the privileges of the parliament were explicitly set down, such as the freedom of speech and debate or proceedings in Parliament, which should not be impugned or interrogated elsewhere than parliament. This was the historical development in Britain, which gave a model of many Commonwealth states, such as India, in the development of their own legislative immunity.

1.3  Integration in Indian Constitution (Articles 105 and 194)

When the Indian Constitution was drafted, the framers were fully aware of the crucial importance of parliamentary privileges of a nascent democracy. As a result, the Constitution was modified to grant these vital powers, privileges and immunities by the introduction of “Articles 105 and 194 in the Constitution”[2]. Article 105 is about “Powers, privileges, etc., of the Houses of Parliament and of the members and committees”[3], whereas Article 194 “grants powers, privileges, and immunities to the State Legislatures and their members”[4]. Importantly, in both articles it is required that these privileges until they are established in law by the respective legislatures, will be the privileges of the House of Commons of the Parliament of the United Kingdom, as they were then. This provision within the constitution in offering a make-shift was also the foundation towards further codification, which has not been yet achieved after more than seven decades. The dependency of an external, un-codified text has, nevertheless, raised complexities and ambiguities that are still threatening the Indian legal and political arena.

2.SCOPE AND NATURE OF PRIVILEGES IN INDIA

2.1  Freedom of Speech, Freedom of Arrest, Control of Publication, Internal Proceedings

The parliamentary privileges in India, through “Articles 105 and 194”[5], have the wide scope of a lot of important areas. The most important aspect is “freedom of speech in the legislative chambers”[6], and parliament members are not afraid to may explain their opinion because they cannot be sued in court on the grounds of anything said or a vote made in Parliament or a committee of the Parliament. Such immunity is the key to healthy debate and questioning. The other important privilege is “the right against arrest”[7], which, as a rule, shields members against civil arrest during a House session as well as a set time before and after the session. This makes there be no unnecessary restriction on the members to attend proceedings in a legislature. “The authority to control the publication of its proceedings”[8] is also an important privilege, which will enable the legislature to protect the publication of its debates and reports. More so, the “legislature has the sole right to control its own business”[9], to penalize disrespect to its authority, consequently preserving order and decorum in the House. All of these privileges are meant to maintain the dignity of the legislative bodies, their powers, and their autonomy in their operations.

2.2  Regulations and Judicial Interpretations and Limitations

This unwritten status of the parliamentary privileges in India has inevitably resulted into judicial intervention and interpretation as has been witnessed to situations where the parliamentary privileges seem to interfere with the basic rights as laid down in the Constitution. The scope and boundaries of these privileges have been tried to be brought out in landmark rulings.

“M.S.M. Sharma v. Krishna Sinha”[10]: The Supreme Court taking into consideration the clash between the parliamentary privilege and the basic right to freedom of speech and expression in “Article 19(1)(a)”[11] was in the path breaking case. The Court ruled that the parliamentary privileges, especially the decision to negate the publication of proceedings would override the freedom of the press. This decision highlighted the broad conception of the parliamentary privilege during that period that implied that the authority of the legislature to govern its own affairs was not subject to judicial scrutiny to the extent.

But there came a more subtle covert in the “Keshav Singh v. Speaker, Legislative Assembly of UP (AIR 1965 SC 745) case”[12]. The case was between the Uttar Pradesh Legislative Assembly and the Allahabad High Court on the issue of breach of privilege. Although the Supreme Court supported the authority of legislature to impose penalties on contempt, it also stated the ability of the judiciary to put the law and especially the constitution under review, especially in instances where rights of fundamental nature are concerned. The Court made it clear that, the legislature alone can determine its privileges but courts could evaluate the fact that the procedure followed by the legislature should not be contrary to the law. This decision established the basis of having a limited judicial review as to the privileges issues with an aim of establishing the balance between legislative autonomy and the constitutional checks and balances system. These court decisions, although providing a measure of clarity, have not resolved the ambiguous nature of such decisions which is created by the lack of a codified law to a certain degree.

2.3  Privileges of Legislatures of States (Article 194) (Indian constitution)

Article 194 (Indian constitution) of the Constitution follows Article 105 (Indian constitution), and gives the same powers, gifts, and immunities to the State Legislatures and to the individuals constituting them and their committees. This facilitates consistency in the operations of legislative bodies in the entire country because it is understood that the same values of legislative independence and good governance are also essential at the state level. As a result, the problems and issues dealt with the un-codified status of parliamentary privileges on the Union level find their reflection in the setting of State Legislatures. The case law arguments and discussions regarding Article 105 (Indian constitution) can be similarly applied to Article 194 (Indian constitution) with the same results, with a possible vacuum in the statutes and other legal and governmental factors. Enhanced codification is thus necessary to both parliamentary and state legislative privileges so as to have the same and open framework in all levers of the law making in India.

3.PROBLEMS OF NON-CODIFICATION

3.1.Doubt and Inconsistency in Application

India has not had a written law that spells out what parliamentary privileges are and what their boundaries are, thus creating much confusion on their specificity. Given that the privileges are based on the practice of the British House of Commons as it existed in 1950, it frequently needs to be supplemented by reference to historical British practices of the parliament, which are not always applicable and valid to the modern Indian democratic reality. Such dependence on external, historical and unwritten source leaves one with a vacuum in which the precise outlines of a privilege are not well described. This results in incongruency in the predictability of how these privileges could be applied and interpreted in varied ways across various legislative bodies over a period of time. This uncertainty may weaken the rule of law and establish the atmosphere in which the exercise of privilege is not considered based on principles but regarded as random.

3.2  Privilege Misuse (Cases Against Journalists, Activists)

The lack of written regulations on parliamentary privilege gives rise to the abuse of breach of privilege motions. In the absence of proper guidelines, these motions have been exploited to criticize lawmakers or legislative processes. Even though this was aimed at safeguarding the honor of the House it may squash dissent, inhibit the freedom of the media and make decisions arbitrarily because absence of due process. Consequently, it creates a chilling effect on the discourse of the populace and creates the appearance that privilege is being applied in order to extricate the criticism instead of defending the integrity of the institution.

3.3  Constitutional Tension and Fundamental Rights and Judicial Review

The unconstitutionality of the parliamentary privileges often puts it in direct opposition with the basic rights spelt out under Part III of the Indian Constitution, especially the “right of freedom of speech and expression”[13] and “the right to life and personal liberty”[14]. The strain comes in by the fact that without any codified law, legislature tend to make their privileges absolute and demand that the judicial review is disallowed. Nevertheless, the judiciary who is the protector of the Constitution and the basic rights has always retained its authority to interpret the constitutional provisions so that none of the authorities may exceed its power as prescribed in the constitution. The cases of “M.S.M. Sharma”[15] and “Keshav Singh”[16] are indicative of an underlying imbalance, which causes this institutional friction. Even if lawmakers need freedom, they can’t just make choices out of nowhere – there’s got to be some grounding in constitutional basics. Things get trickier when there aren’t firm rules defining what powers legislators actually have, making it hard to weigh their independence against broader rights protected by the constitution along with how government branches stay separate. Putting these boundaries into actual statutes might help clarify how to handle that clash between two key parts of the system.

4.COMPARATIVE JURISPRUDENCE.

4.1  UK: Bill of Rights 1689

The United Kingdom, the motherland of India parliamentary privileges, has a long history of specifying some of the major privileges by statute. The most notable of them all is the “bill of rights 1689. Article 9 of the Bill of Rights”[17] is quite definite: That the liberty of speech and debates or proceedings in Parliament, without being impeached or questioned in any court or place out of Parliament. This has been a statutory part of parliamentary privilege in the UK, and offers unqualified protection to statements made in Parliament. Although the UK continues to depend on a combination of statute, common law and convention to define its privileges, the Bill of Rights 1689 shows a landmark move in statutory definition at least of the most important privilege of freedom of speech. It sets a legal limit on this particular privilege, thus minimizing uncertainties and possible confrontation with other governments.

4.2  Australia: Parliamentary Privileges Act 1987

There is a more detailed codification model in Australia. In the realization that there was the need to be clear and therefore modernized, the “parliamentary privileges act 1987”[18] was developed in Australia. This Act is a systematic-based definition of the powers, the privileges and the immunities in the Commonwealth Parliament and its members. The major characteristics of the Act are:

• Definition of “proceedings in Parliament” The Act gives a loose but clear definition of proceedings that state the extent of immunity that applies to acts carried out in the legislative context.
• Protection of Witnesses: It also has provisions that guarantee the protection of the witnesses who appear before the parliament committees as they could be in a position to give evidence without the fear of being reprimanded.

4.3  Canada and New Zealand Frameworks

Canada and New Zealand offer good examples to compare in the codification of parliamentary privileges. The creation of privileges in Canada was through the British House of Commons, but it had debates and some were partially codified by the statutes, including the Parliament of Canada Act, common law, and parliamentary practice. Although not wholly written as is the case in Australia, certain privileges like compelling witnesses are codified in the books.

Parliamentary privilege in New Zealand has also been shifted towards being regulated more clearly. There is no specific statute to define its privileges as in the case of Australia, but a number of legislation, different statutes, and standing orders will determine them. The tendency of the two countries to more clarity and statutory definition of parliamentary privileges in emerging global trends that discard the practice of relying on unwritten conventions.

4.4 Indian Lessons and Principles

The comparative analysis indicates some important lessons by India:

• Stability and predictability
• Striking a balance between Autonomy and Accountability
• Clear Procedures
• Modernization
• Less Institutional Friction

The underline of these principles is to encourage India to take a step forward to a codified document which is unique to the constitutional ethos of India and is supplemented with the best experience of other mature democracies.

5.TOWARDS CODIFICATION: REFORM PROPOSAL

5.1.The need in codification in India

The lack of codification of the privileges of the parliament in India contributes to the recurrent issues, which highlights the necessity of the arrangement of reform. The existing dependency on the tradition of the British House of Commons since 1950 is retrogressive and inappropriate to the contemporary independent, constitutionally ruled and constitutional democracy. The exercise of these vital powers would be much needed in codification to add clarity, certainty, and predictability to it. It would clarify the uncertainties that are often the source of clashes with the basic rights, especially the “freedom of speech and the press”[19], and would lower institutional antagonism between the legislature and the judiciary. Moreover, a written law would provide light mechanisms of addressing practice issues concerning privileges, and as a result, improve responsibility and reduce the possibility of abuse. It is another significant measure in bringing a shift in the parliamentary practice to align with the constitutional values of transparency and rule of law and democratic accountability.

5.2.Framework on codification to be drafted

An all-out Parliamentary Privileges (Regulation and Accountability) Act would be needed and it would contain the following aspects:

• Preamble
• Definitions
• Written Privileges.
• Restrictions on Privileges

6.CONCLUSION AND RECOMMENDATIONS.

6.1.Summary of Findings

The study has shown the historical development of parliamentary privileges in India and how they originated in the Constitution in Articles 105 and 194. It has provided a critical analysis of the inherent issues with such un-codified regime, such as the widespread sense of uncertainty, very uneven application of the same, and the propensity to misuse privilege motions upon journalists and citizens. The article has highlighted the history of constitutional conflicts between the privilege of legislature and basic rights including historical judicial pronouncements like “M.S.M. Sharma v. Krishna Sinha”[20] and “Keshav Singh v. Member of Parliament, Legislature of UP”[21]. Comparative study of jurisdiction such as the “UK (Bill of Rights 1689)”[22] and “Australia (Parliamentary Privileges Act 1987)”[23] indicated that extensive statutory schemes are better placed in terms of clarity, limit definition and provide clear procedure therefore achieving a balance between legislative freedom and responsibility. Lack of such framework in India has assumed a vacuum that weakens the principle of democracy and creates institutional tension.

6.2  Greater Implications on Parliamentary Democracy and Separation of Powers in India

The codification of the parliamentary privileges in India would have far reaching and positive effects on the parliamentary democracy in India and the concept of separation of power.

Greater Transparency: A written structure would also have a greater effect at increasing the accountability of legislators, and limiting the risks of misuse.

Enhancement of Rule of Law: Codification would enhance the rule of law through replacing ambiguous conventions with legal provisions.

Less Institutional Friction: The presence of pristine statutory boundary would go a long way in ensuring that conflict between the legislature, the judiciary and the media would be.

Construe of Fundamental Rights: Codification would enhance the protection of the rights of individuals and especially the freedom of speech, which is fundamental.

Legislative Modernization: This would make the practice of the parliament in India more apt to the global democratic practice, which represents a grown-up and changing constitutional ethos.

To sum up, the codification of parliamentary privileges is not just a procedural change, which will offer a substantial enhancement of the democratic institutions in India but a devastating move towards a more transparent, accountable, and balanced exercise of power in the Indian constitutional principles. It is a demand of a responsive and a dynamic parliamentary democracy.

Reference(S):

[1] Bill of Rights, 1688, 1 Will. & Mar. Sess. 2, c. 2 (Eng.). 

[2] INDIA CONST. art. 105, art. 194.

[3] INDIA CONST. art. 105. 

[4] INDIA CONST. art. 194. 

[5] INDIA CONST. art. 105, art. 194.

[6] INDIA CONST. art. 105, cl. 1. 

[7] INDIA CONST. art. 105, cl. 2. 

[8] The Parliamentary Proceedings (Protection of Publication) Act, 1977, No. 15, Acts of Parliament, 1977 (India). 

[9] INDIA CONST. art. 118, cl. 1. 

[10]M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395. 

[11] Freedom of Speech and Expression, INDIA CONST. art. 19, cl. 1, ¶ (a). 

[12] Keshav Singh v. Speaker, Legislative Assembly, 1965 AIR 745.

[13] INDIA CONST. art. 19, cl. 1, § a. 

[14] INDIA CONST. art. 21. 

[15] M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395

[16] Keshav Singh v. Speaker, Legislative Assembly, 1965 AIR 745.

[17] 1 Will. & Mar. c. 2, at 11 (1689) (Eng.)

[18] Privileges Act 1987 (Cth).

[19] INDIA CONST. art. 19, cl. 1(a). 

[20] M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395

[21] Keshav Singh v. Speaker, Legislative Assembly, 1965 AIR 745.

[22] 1 Will. & Mar. c. 2, at 11 (1689) (Eng.)

[23] Privileges Act 1987 (Cth).