Parliament privileges (Articles 105 and 122)

• Members of Parliament have special privileges and immunities (both individually and collectively) that allow them to carry out their duties effectively. Articles 105 and 122 of the Indian Constitution govern these privileges and immunities, while state-specific provisions are 194 and 212.
• Concept of parliamentary privileges
• Parliamentary privilege is the sum of specific rights enjoyed collectively by each House and individually by members of each House that outnumber those owned by other groups or individuals and without which they could not carry out their duties.
• Some privileges are solely governed by Parliamentary law and custom, whereas others are governed by statute.

The History of Parliamentary Privileges

• The origins of Parliamentary powers in India can be traced back to 1833 when the governor-council general was expanded to include a fourth member as a result of the 1833 Charter Act. A new type of legislative apparatus was established. This laid the groundwork for an institution that grew into a full-fledged legislative body over time.
• The official opposition to the assembly's privileges was lessened after the Indian Councils Act of 1909 allowed for indirect election to the legislature.
• The Government of India Act of 1935 guaranteed legislative freedom of expression.

Sources of privileges

• The five sources of the privileges are
• Constitutional provisions
• Various laws made by Parliament
• Rules of both Houses
• Parliamentary conventions
• Judicial interpretations

Constitutional Provisions - Parliamentary Privileges

• Parliamentary privileges (Articles 105 and 194) are special rights, immunities, and exemptions enjoyed by members of Parliament's two houses and their committees.
• These rights are also granted to those who speak and participate in any Parliamentary committee, including the Attorney General of India and Union Ministers.
• The president, who is a member of parliament, does not have these benefits.
• The 44th Amendment to the Constitution changed Article 105 (3) into two parts.
• The powers, privileges, and immunities of each House of Parliament, its Members, and Committees shall be defined by Parliament by law from time to time.
• Until such powers, privileges, and immunities are defined by Parliament, they shall be the same as those enjoyed by the House of Commons on January 26, 1950.
• Article 105 (3) avoided a direct reference to the House of Commons, but such privileges effectively continue until Parliament passes legislation.
• In India, there are various types of parliamentary privileges.

Collective Privileges

• The ability to publish reports, debates, and proceedings, as well as the ability to prevent others from doing so, are collective privileges of each House of Parliament. Under the freedom of the press, it can publish accurate reports of Parliamentary proceedings without the House's permission. This right of the press, however, does not apply in the case of a House meeting held in secret.
• Keep strangers out of the gathering and plan covert sessions to address pressing issues.
• Make rules to govern its own procedure and commercial activity, as well as to make decisions on such matters.
• Right to be notified immediately of a member's arrest, detention, conviction, imprisonment, and release.
• Initiate inquiries and compel someone to attend.
• The courts are not permitted to investigate the proceedings of the House or its committees.
• No one (whether a member or an outsider) can be arrested, and no legal process (civil or criminal) can be served within the House's boundaries without the consent of the Presiding Officer.
• Individual Privileges
• Individual privileges are granted to members.
• No member may be arrested during the session of Parliament, from 40 days before the start to 40 days after the end. This privilege is only available in civil cases; it is not available in criminal or preventive detention cases.
• Members of Parliament have the right to free expression. No member of Parliament or its committees is held legally responsible for anything said or voted on in Parliament or its committees. The provisions of the Constitution, as well as the norms and standing orders that govern Parliament's operation, limit this independence.
• When Parliament is in session, members are exempt from jury duty. They have the right to refuse to testify and to give evidence in court.

Article 361-A - Publication Freedom

• The Constitution 44th Amendment added Article 361-A, which states that no one shall be liable to any civil or criminal proceedings in any Court of law in respect of any publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or Legislative Assembly unless the publication is proven to have been made with malice. A similar immunity is extended to radio broadcasts. Prior to the 44th Congress, newspapers were not immune to the publication of parliamentary proceedings.
• The Supreme Court ruled in the well-known Searchlight case that publishing inaccurate or mangled versions of House speeches or misreporting the proceedings violates privilege.
• The Court ruled that publication of portions of proceedings expunged by the House by a newspaper constitutes a breach of the House's privilege, and the offending party can take action despite the protection provided by Article 361A.
• The Supreme Court also ruled that the House can prohibit the publication of any debates or proceedings, even if such prohibitions violated Article 19 (1)'s guarantee of free speech and expression (a).
• Parliamentary Privileges - Internal Autonomy Provisions
• Article 122 (1) grants immunity to the House's internal operations along the same lines. The legality of any proceedings in Parliament cannot be called into question because of alleged irregularities or procedural violations.
• According to Article 122 (2), officers of Parliament who regulate its procedure and keep order are not subject to the jurisdiction of any court while exercising those powers. As a result, the House of Commons is not subject to judicial oversight in its operations.
• The Speaker cannot be sued for monetary damages for any action taken against a member, including arrest. Even if the subject of legislation is ultra vires, a High Court or Supreme Court cannot issue a writ under Article 226 or Article 32 to restrain the functioning of the House or legislation. Only after a Bill is signed into law by the President can the Courts rule on its constitutionality.
• Thus, the House is immune from judicial process, and this courtesy is extended to the House Committee, as a committee is one of the House's parts through which it functions. A Court of Law, on the other hand, can investigate the illegality or unconstitutionality of a procedure.
• What exactly is a violation of privilege?
• A breach of privilege is a violation of any of the MPs' or Parliament's privileges. Any action 'casting reflections' on MPs, parliament, or its committees, for example, could be considered a breach of privilege. This could include the publication of news articles, editorials, or statements made in newspaper/magazine/TV interviews or public speeches.

The Benefits of Parliamentary Privileges

• It reduces tensions, fosters goodwill, and promotes cooperation between the two branches of government: The parliamentary form of government is advantageous because it encourages collaboration between the executive and legislative branches of government.
• Decision-making that is both faster and more efficient: The legislative and executive branches, as well as the parliamentary system, are linked to allow for faster and more efficient decision-making.
• In a parliamentary system of government, the fusion of the legislature and the executive to run a cabinet system of government results in fewer personnel and costs. Unlike a presidential system, in which all branches of government are divided and occupied by different groups of people.
• It promotes good governance: The parliamentary form of government also promotes good governance for the successful management of the country because the individual and collective duties assigned to the parliament would motivate all cabinet members to work hard. Transparency and accountability are also ensured.

Concerns about parliamentary privileges

• While a parliamentary system appears to always support good governance, it can also lead to parliamentarians becoming overly strong and arrogant, which can lead to political power abuse. As a result of the legislative system, members of parliament will become supreme and untouchable.
• Because the Prime Minister is directly elected as the leader of his party in a parliamentary system of government, he is loyal to his party rather than the people of the country. As a result, he will be more loyal to his political party than to his constituents.
• The prime minister's tenure is always in doubt in a parliamentary system of government because the parliament can fire him at any time with a "vote of no confidence." This could lead to a crisis, segregation, or political instability.
• Because of the convergence of legislative and executive powers, cabinet members may be overburdened with double duties, and some ministers may be unable to cope.
• Finally, while the parliamentary system requires people to perform both legislative and executive functions, it is important to remember that a minister's lack of expertise may result in inefficiencies in one arm of the government's control.

Measures must be taken

• Need to Codify Parliamentary Privileges - As a result, there is an urgent need to codify the House's privileges, powers, and immunities. It will provide appropriate guidelines to be followed and will eliminate the uncertainties that currently exist. Free speech and the rule of law should be the norm, not the exception, in a democracy.
• In the Searchlight case, Justice Subba Rao argued strongly for the codification of privileges rather than adhering to conventions. The framers of the constitution believed that House privileges should be allowed to grow and nurture over time before being legislated. As a result, the time has come to codify the privileges, powers, and immunities, which will not only provide a proper road map to follow but will also serve as a safeguard against any misuse of powers, privileges, and immunities.