Parliamentary Privileges

Parliamentary Privileges do not grant immunity to MPs (or MLAs in the case of state legislatures) on bribery charges- that's what the Supreme Court ruled in a landmark judgement recently. The Supreme Court overturned its previous judgement of 1998, known as the JMM bribery case, which had granted immunity to the legislators. The Parliament Privileges are a set of rights and legal immunity that legislators enjoy when they serve their legislative duty. These privileges are sanctioned by the Indian Constitution under Article 105 and Article 194 for MPs and MLAs, respectively. They are considered essential for a parliamentary democracy as they enable a parliamentarian to discharge his or her duty without any fear of unwarranted repercussions. But it has been observed that these privileges were misinterpreted and misused for personal gains. In recent times, there have been reported cases of legislators taking bribes for casting their votes in the assembly or for raising questions on some issue. Such misuse of privilege is dangerous for a democracy as it ‘deprives citizens of a responsible, responsive, and representative democracy’.

The origins of the Parliamentary Privileges can be traced back to 16th century England. They were introduced in the House of Commons to provide some protection to the legislators from any pressure from the monarchy. When the British East India Company gained control over India, they also introduced the British system of lawmaking. The Indian Council Act of 1861 defined the powers of the legislative council. And from there on, these privileges evolved further. Provisions regarding the privileges of the members of the legislature were also mentioned in the Government of India Act of 1935.

Parliamentary Privileges are the rights and immunity that are enjoyed by a legislator and are essential for the effective and efficient discharge of their duties. They can arise from the customs or rules of the Parliament or be explicitly defined in the statutes. The members of the state legislators also enjoy similar privileges.

In India, the Constitution under Article 105 and Article 194 assigns certain powers, privileges, and immunities to the members of Parliament and state legislators, respectively.

• The original Constitution, under Article 105, explicitly mentioned freedom of speech and the right to publish its proceedings.
• And it provided that the other privileges would be the same as those of the British House of Commons, its members, and its committees at the commencement of the Constitution (i.e. 26th January 1950) until the Parliament defined them.
• The 44th Constitutional Amendment Act of 1978, replaced this and provided that other privileges of both the Houses of Parliament, its members, and its committee shall be the same as they were at the commencement of this Act (i.e. 20th June 1979).
• This effectively meant that the other privileges remained the same, and only verbal changes were made by removing any reference to the British House of Commons.
• These Parliamentary Privileges can be afforded to:
  • Persons who are entitled to speak or take part in the proceedings of any house of the Parliament.
  • Any committee of the Parliament.
  • These include the Attorney General of India and the Union Ministers.

Parliamentary Privileges can be broadly classified into two types, namely, Collective Privileges and Individual Privileges.

When any person or any authority ignores or attacks any of the collective or individual privilege or rights of the House of Parliament, it is considered a breach of the privilege.

What constitutes a breach of privilege is nowhere codified. If a member is satisfied that there is a breach of privilege, then a motion can be raised. The presiding officer (Speaker of Lok Sabha or Chairman of Rajya Sabha) can admit that motion, and the House can consider the motion, or the presiding officer can refer it to the Privilege Committee of the House (15 member committee in Lok Sabha and 10 member committee in Rajya Sabha).

• Freedom of Speech and Expression: Parliamentary Privilege ensures that the MPs can freely express their views on any matter and represent the people with full conviction. It empowers them to scrutinise the actions of the executive without fear.
• It protects the members from unfair criticism and gives them much needed space to work without any intervention.
• It aids in upholding the respect and dignity the members deserve as lawmakers and also protects them from undue influence from outsiders.

• The breach of privileges is decided by the members themselves. This violates the principle of natural justice.
• What constitutes a breach is not codified anywhere, so the process seems more arbitrary.
• Since there is no codification, it provides a space for misuse by the members. There have been many reported cases of misuse such as bribery for asking questions or voting.
• Could become a tool for political vendetta against the members. Members could be suspended or punished for raising some important matters.
• The role of the presiding officer is also under criticism from the experts. Because the presiding officer can decide whether to admit or reject the motion and he/she can be partisan in making decisions.

PV Narasimha Rao vs. State (CBI/SPE), 1998 case:

• It is popularly known as JMM judgement. When Narasimha Rao’s government faced a no confidence motion in 1993, it was short of a majority by 13 MPs (in a 528 member Lok Sabha). But the no-confidence motion was defeated when 14 opposition members voted for the government.
• Later, some MPs were accused of taking bribes to vote with the government. The CBI launched the investigation against JMM (Jharkhand Mukti Morcha) MPs and some others. This issue ultimately reached the Supreme Court.
• The Supreme Court, in its judgement, ruled that Article 105 gives immunity to a MP from any criminal prosecution. But the court did not extend the same protection to the bribe-giver. Hence, a distinction was made between bribe-givers and bribe-takers. It was a 3-2 split judgement.
• This judgement gave a ‘blanket immunity’ to the MPs and MLAs.

Sita Soren vs Union of India case:

• The landmark judgement in this case was delivered by a seven-judge constitutional bench. It overturned the JMM case of 1998.
• In this case, the Supreme Court opined that bribery cannot be protected by Article 105 or Article 194 of the Constitution.
• Some important observations made by the Supreme Court in this case are:
  • The parliamentary privilege emanates from the Constitution; hence, they must follow the larger ideals of the Constitution.
  • It cited a ‘necessity test’. It means that a privilege without which a member of Parliament cannot function is said to be a necessary function.
  • The court said that having freedom of expression in Parliament is necessary for an MP, while taking bribes is not.
  • Also, if bribery and corruption are allowed at the legislator level, it will erode parliamentary democracy in India.
  • It will be dangerous and will create a polity that ‘deprives citizens of a responsible, responsive, and representative democracy’.
  • The court held that it is also violative of Article 14 right to equality, by creating an illegitimate class of public officials that is given extraordinary protection.

While Parliament is not allowed to discuss the conduct of the judges of the Supreme Court or a high court under Article 121, the Supreme Court has ruled on the privilege of the members of Parliament. Experts believe that this ruling may have implications for the ‘separation of power’ doctrine, as the breach of Privilege is to be decided at the sole discretion of the Parliament itself. The Supreme Court had pointed out that ‘probity in public life’ is one of the ideals of the Constitution, and it has to be upheld. The court also ruled that Parliament has the right to punish its contempt when an MP has taken a bribe, but this is “distinct from criminal prosecution”. In other words, both courts and the Parliament can rule on the bribe-taking MPs in parallel.

The rationale for affording some special privileges to the members of the legislatures was to make the legislators free of any fear. It would act as a shield and protect them from any unwarranted actions. But over time, this entitlement was being misused by some members of the legislature when they traded their votes in exchange for bribes. This act was given blanket protection when the Supreme Court in the JMM case opined that the MPs and MLAs have immunity from any legal actions under Article 105 and Article 194. This judgement had jeopardised the ideals of parliamentary democracy in India. Therefore, the Supreme Court ruling in the Sita Soren case overturning the JMM ruling holds significance as it promotes probity in public life. By citing the ‘necessity test’ it has provided guidance for any future question that may arise in this regard. Now this ruling will not only deter lawmakers from being enticed by monetary gains but also promote free speech for MPs and MLAs in the legislatures. Onus is now on the Parliament to provide some clarity on the question of privileges, perhaps by fulfilling the demand for codification of such privileges.