Parliamentary privilege enables parliaments “to perform their functions as representative institutions, in creating effective legislation and in scrutinizing government activity”. “As being exception to the ordinary law of the land”. Parliamentary privileges consist of “freedom of speech and debate, freedom from arrest, exclusive cognizance of the Houses, and the power of Houses to punish contempt etc.” Immunities granted to individual members acting in course of parliamentary proceedings work as shields that “allow parliamentarians to perform their duties without fear of intimidation or constraint”.
As the subject of parliamentary privilege itself is vast and complicated in “law and practice” various concerns and conflicts have arisen over the centuries on the same, e.g., “sub judice matters, search warrants and subpoenas, the power of Houses to punish for contempts, citizen’s right of reply, immunity of non-members and the scope of freedom of speech have on numerous circumstances brought legislative bodies and its members in divergence with constituents and the executive branch of government”.
Parliamentary privilege along with the possibilities for its abuse and misuse as has been a contentious issue as well the other issues such as: whether citizens should be allowed a right of reply; whether the privilege of freedom of speech in the proceedings of parliament needs to be qualified rather than to remain absolute; and, whether privilege allows persons to be unfairly defamed etc.
G. Griffith puts an observation that: “Recent cases on parliamentary privilege may not point in any discernible direction or reveal any definite trend, turning as most of them do on the particular facts at issue”.
An effective separation of power between legislatures, judiciary and executive has proven the effective solution for avoiding or at the most lessening friction, issues and conflicts between various rights and powers conferred specially on these branches. Still “years of evolving statutory and procedural structure with respect to privilege have still left many unreliability and grey areas as to the role each section of government is planned to perform”.
The controversial issues and challenges of the subject of parliamentary privileges under Constitution of India are discussed underneath.
ISSUES, CONTROVERSIES AND CHALLENGES ABOUT PARLIAMENTARY PRIVILEGES
Collison of the concept “parliamentary privilege” and Rule of Law
The concept of parliamentary privileges granted by the Constitution and the general Rule of Law are considered to be contradictory to each other. As the Rule of Law implies that everyone under the Rule of Law should be treated equally, the granting of special rights and immunities to parliamentarians is contemplated as opposing and undermining the equality under Rule of Law.
Dr. Adam Tucker averred: “Parliamentary privilege undermines the Rule of Law. Specifically the requirement, which is central to the Rule of Law, that the law be general.”
United Kingdom Joint Committee on Parliamentary Privilege in its report of 1998-99 observed: “The term [parliamentary privilege] labours under the disadvantage that the word privilege still carries a connotation of gain or advantage unconnected to public need or duty…the very subject is deceptive and unfortunate”.
Articles 105(4) and 194(4) are limited in scope.
In United Kingdom “witnesses and other unknown who are called before the House or attending the proceedings of the house or any of its committees in relation with the business of the House” are protected and granted immunity, which is an “established fact” and the following deductions can be made out from this “established fact”:
• “The members of Parliament enjoy the protection inside the House for everything they say or do in connection with the business of the House. They enjoy exemption from legal proceedings for slender in respect of their evidence.
• They enjoy member’s privilege of freedom from arrest.
• The House of Commons has power and privilege to proceed against their disturbers, intimidators and molesters, and punish them for contempt.”
Articles 105(4) and 194(4) which run as follows grants freedom of speech to “persons who have got by virtue of the Constitution right to speak in or to participate in the proceedings” of the Parliament, State Legislatures or in its committees:
“105. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the activities of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”
“194. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to participate in the proceedings of, a House of State Legislature or any committee thereof as they apply in relation to members of that Legislature.”
In India it seems that the category of “these non-members” is diligently restricted and the right to participate in proceedings of legislative bodies must be directly received “by virtue of this Constitution only”.
Articles 105(4) and 194(4) confer freedom of speech and the qualified immunity also to the non-members of the legislative bodies if those non-members are speaking as a member of the parliamentary or state legislative committee or speaking as a witness in Parliament or State Legislatures or in front of relative committee.
Following are the persons who have “right to speak in and otherwise to participate in the affairs of the Parliament and the Legislature of the States or in any of the committees” which is bestowed on them directly by the Constitution are:
• President of India
• Vice-President of India
• Ministers and Attorney-General of India
• Governor of a State
• State Ministers and Advocate-General
Thus it can be deduced by the wordings of Articles 105(4) and 194(4) that except the “other persons” listed above all other parliamentary witnesses and other persons are not applicable to receive privileges and immunities enjoyed by the members of legislative bodies in India.
Parliamentary Privileges sometimes clash with Rights of Public as well executive privilege.
The scope and extent of privileges, rights and immunities granted to parliamentarians is always a debatable issue all over the world. The special status given to parliamentarians as compared to common civilians or public has a potential to be controversial not only with the public but also with the other executive side of the government. “There have been concerns about the scope and extent of parliamentary privileges, whether these privileges should be qualified or absolute, whether members should be immune from suit or prosecution under the laws of defamation.”
In United States of America, United Kingdom and Australia “issues have been raised with regard to the abilities of the judiciary and law enforcement officials to carry out their duties regarding the privileges of parliament, such as in the execution of search warrants, the issuing of judicial writ and orders for discovery”.
The privileges of legislative bodies’ conflict with the powers conferred on executive government, the powers which are called executive privileges. Executive privileges contain certain rights “to withhold information when such disclosure of confidential communications would adversely affect the operations or procedures of the executive branch”.
In United Kingdom and Australia “executive privilege” is named as “crown privilege”; in the United States of America it is referred as “public interest immunity”
While exercising privilege executive sometimes “refuse to disclose certain documents (in protecting the operations of government)” which creates friction between legislative bodies and the executive which “can impede the ability of parliaments to scrutinize the operations of the executive”.
Thomas Erskine May has noted that in 17th century a committee of House of Commons has observed that: “[T]he privilege granted to parliament in regard of public service must not be used for the danger of the commonwealth”.
Author: Shaijal Shekhar,
Faculty of Law, A.M.U (2nd Year)
