PARLIAMENTARY PRIVILEGES: ANALYZING LEGISLATIVE IMMUNITY & FREEDOM OF SPEECH IN LIGHT OF LANDMARK JUDGMENTS

ABSTRACT 

Parliamentary Privileges are one of the vital aspects of any legislative system around the world. They enable the law-makers and other crucial members of the legislative body to openly express their views or debate during sessions on any public policy, bills, and other necessary sanctions without any fear or favor. This is necessary to ensure that even an individual candidate without any majority support can state his/her opinion without having to fear about any arbitrary action by the legislative power in the house or any legal proceedings. Though there are times when such immunities are misused to cover up fraudulent and corrupt act. This compromises democratic principles and leads to instability in the parliamentary form of governance. Certain strict actions are taken against members for breach of privilege or contempt of house; however, they do not deal with bribery or corruption cases in relation to the voting power of members. This raises several questions, such as:

What if the law-makers offer bribes to other candidates to vote/speak in their favor? What if the law-makers engage in corruption and use these privileges to protect themselves? Doesn`t this defeats the entire purpose of voting system in parliament? Are MPs and MLAs immune to criminal proceedings in case of bribery? This Research paper encompasses all aspects relevant to these questions and subject matter. 

KEYWORDS: Parliamentary Privilege, Bribery, Corruption, Legislative Immunity, Freedom of Speech.

INTRODUCTION 

Article 105 of the Constitution of India provides for provisions related to the powers and privileges of the members and committees of the House of Parliament. It provides freedom of speech in Parliament as well as immunity from any court proceedings in respect of anything said or any vote given by members during the parliamentary sessions. There is also immunity with respect to any publications made in relation to reports, votes, proceedings, etc.

Similarly, Article 194 of the Indian Constitution provides equivalent powers & privileges, as mentioned in Article 105, to the members and committees of the Legislature of every state. In regards to other privileges and powers, the Constitution expressly mentioned that they were to be the same as those of the British House of Commons on the date of commencement of the Constitution, until it is defined by the Parliament. This was later done in the 44^th Constitutional Amendment Act of 1978. However, the other privileges remained the same as earlier, except for the verbal changes in the Article. The House of Parliament enjoys several privileges ranging from immunity against arrest during, before, and after parliamentary sessions to formulating its own rules & regulations for conduct. As citizens, the members of the Parliament and State Legislature have fundamental right of freedom of speech and expression. Going further than that, the Constitution secures the freedom of speech and debate in legislative bodies of both the Union and the State. The recognition of these rights is necessary because speech, debate, and critique are the key components that sustain democracy. The freedom of speech under Article 105 is not absolute; it is subject to the limitations of the rules and standing orders regulating the procedure in Parliament. Making derogatory, defamatory, or personal allegations is not immune and lead to breach of privileges and code of conduct in the house. The Court had interpreted the word “anything” in Article 105(2) in a broader sense, which is only limited by “Parliament”. Anything said or voted for during the parliamentary sessions is within the ambit of Article 105, although nothing that is said outside the purview of the parliamentary session is protected or immune. 

RESEARCH METHODOLOGY

This Research Paper utilizes Doctrinal approach of research focused on analyzing primary sources like statutes, legal principles, Constitutional provisions, judicial decisions and rules & regulations. It also focuses on analyzing secondary sources like articles, legal commentaries, judicial interpretations and books. A Systematic Analysis of these primary and secondary sources has enabled a comprehensive and in-depth understanding of constitutional provisions and judgments. The Research topic of this paper requires significant analysis of secondary sources and comprehensive interpretation of judicial precedents to analyze the Parliamentary Privileges and the concept of immunity in criminal cases as well as to understand freedom of speech. 

REVIEW OF LITERATURE

The Literature review for this legal research paper explores the historical roots and current legal standing of the Parliamentary Privileges. Beginning with the important Constitutional provisions such as Article 105 and Article 194, the review traces the judicial interpretation of these provisions through landmark judgment passed by the Supreme Court of India in the case of P.V. Narasimha Rao dated back to the year 1998 and the recent landmark judgment in the case of Sita Soren v. Union of India passed on March, 2024. 

• Article 105 & Article 194 of the Indian Constitution provides privileges and powers to the law-makers. It provides a better and original understanding on the intentions of the Drafting Committee and Constituent Assembly in relation to the privileges of legislator.
• P.V. Narasimha Rao (1998) case brings a landmark judgment on immunity in case of bribery and the necessity to protect the parliamentary privileges.
• Sita Soren v. Union of India (2024) reconsiders the judicial precedent in P.V. Narasimha Rao (supra) and addresses a notable anomaly in the majority judgment of 1998 and finally overturning the 25-year old judgment.
• Indian Polity 6^th edition by M. Laxmikanth qualifies as the most reliable and easy-to-understand sources for Parliamentary matters.

HISTORICAL ROOTS

The privileges of legislatures in India are intertwined with history and development in the aftermath of the struggle for independence from the colonial rule. During the early colonial period, the East India Company`s primary focus was trade and commerce; however as the business grew and the company started gaining more territorial control, there came a need of governance, administration and accountability. Up until the Acts were passed, the EIC operated under the charter granted by the British Crown. The Regulating Act, 1773 marked the first historical legislative intervention by British Parliament, by creating Governor-General, establishing Supreme Court and other matters. After this numerous acts were passed to fulfill the shortcomings of the previous ones. The Charter Act, 1833, primarily brought eminent changes by reassigning the Governor-General of Bengal as the Governor-General of India with exclusive legislative powers. The Governor-General had council of four members, one of whom was a law member with only legislative power. This was an introductory measure to conveniently pass laws rather than concerning the representation for framing better laws. Lord Macaulay, the first law member and also the person who drafted the Indian Penal Code 1860,  made some efforts to secure special privileges like freedom of speech, freedom of voting, right to be present at all meetings of the Council and right to information about such meetings. This was drafted in his standing order. 

The Charter Act, 1853 marked the separation of legislative and executive functions. The Legislative Council was to have additional member to help in legislative business and give their opinion. These members did not have privileges under law, but the absence of restrictions on their freedom of speech, was seen as a granting them inherent rights and privileges. The Legislative Council under the Acts of 1833 and 1853 had the power to make their own rules of procedures. This power was taken away by the Indian Council Act, 1861. It introduced 6 – 12 non-official members in the Council, being either British or Indian. Thus, there were official member, who were part of the government and represented government`s interests, and Non-official members, who were not officially the part of the government and were nominees of the princely states, landlords, and other communities representing various interests. The British Parliament recognized the privileges of members of Indian council, though under the act of 1861 it was sufficiently stringent and did not allow acts beyond the domain of this act. Moreover, there was a significant inequality between the freedom of speech of the official members and non-official Indian members. The Government of India Act, 1909 marked a prominent shift in the Indian political institutions. The Act allowed more Indians to be a part of the Legislative Council, in spite of that there were restrictions to speak on certain subjects. Regardless, the non-official members continued to assert their freedom of speech and tried to soften the rigidity of colonial rule in India. The executive at that time had more authority than the council and thus violated their privileges. The Government of India Act, 1919 separated the legislative and executive branches, forming a diarchy system. The Act gave freedom of speech to the legislature, but it was still subject to the pleasure of the Governor-General. These restrictions impeded the ability of legislators to discuss matters of public importance and introduce legislation. After few years, the government introduced the Legislative Bodies Corrupt Practices Bill which penalises the practice of offering bribe to members for voting/speaking in another person`s favour. The bill ultimately lapsed and never reintroduced. The parliamentary privileges in India trace its roots to the colonial times, when the legislators were at the mercy of the Governor-General, making it difficult to discuss public issue and criticize policy. The legislators in India always demanding parity with UK House of Commons to reasonable represent the Indian community. The legislators felt that absence of privileges would cause hindrance in the discharge of their legislative duties. At no point, the privileges were meant to use as a shield against any criminal proceedings. This background prevailed in the Constituent Assembly and ultimately brought forth Article 105 and Article 194. 

PARLIAMENTARY PRIVILEGES

Article 105 and Article 194 provide privileges and powers to the law-makers, granting them freedom of speech and immunity from court proceedings, in case of anything said/voted. These are codified and specified privileges mentioned by the drafters of our Constitution. The rest of the privileges that are not mentioned are similar to those of UK House of Commons. Although, unlike the UK House of Commons, where privileges are ancient and customary and inherent from earlier, the Indian Parliament has the power to define new and their own privileges. These privileges are subject to review by the Apex court. The privileges existing as of now are not codified and are based these sources:

• Constitutional Provisions
• Laws enacted by the Parliament 
• Rule book of Both the Houses
• Parliamentary conventions
• Judicial Interpretations.

The privileges are of two kinds: 

• Collectively enjoyed by the house as a whole. (Collective Privileges) 
• Individual privileges belonging to each of the member. (Individual Privileges)

JUSTIFICATION AND BENEFITS OF PARLIAMENTARY PRIVILEGES

1. Freedom of Speech: It provides freedom to speak and put forward public grievances and issues. Such privileges are necessary to sustain democracy by providing an extra-ordinary platform for the legislators to speak without any fundamental restrictions provided by the Constitution, like they are for the citizens.
2. Platform for debate: Parliamentary privileges ensure that legislators have the free-hand to openly debate any government policy and criticize it without fearing legal consequences.
3. Individual Opinion Matters: Such privileges that are enjoyed by each and every member of the House ensure that they can express their opinion without having to fear about any action taken by the majority power in the house.
4. Independence of Legislative: The legislators can be sure that no external intervention by the judiciary or any branches is brought forward in the discharge of their conduct of business in each house. 
5. Free & Fair Voting: In every election or voting system, it is necessary that the voters have certain privileges and protection so they can select their preferred candidate or vote in favour of their preferred motion. 

In the absence of such a feature, the Parliament and the state legislatures lose their representative character in a democratic polity, which causes instability in the parliamentary form of governance.

CRITICISM AND CONCERNS OF PARLIAMENTARY PRIVILEGES

1. Misuse of Freedom of Speech: Members may make defamatory, derogatory, or personal allegations against anyone and use privileges as a way to evade legal consequences. Although there is freedom of speech in Parliament, it is still subject to restrictions imposed by the rules & regulations of each of the houses. These limitations are crucial to safeguarding the decorum and maintaining the legislative environment. 
2. Lack of Accountability: It has been argued that parliamentary privileges could sabotage the transparency and accountability in the government, by allowing MPs/MLAs to withhold crucial information and thereby breaching citizen`s right to information.
3. Need to Codify the Privileges: These legislatorial privileges are still not codified. This causes ambiguity regarding privileges and their uses. Thus, codification will propose predetermined penalties for any kind of violation. It would also assure proper standards and a structured approach to privileges.

4. Impact on Justice: In the case of any legal proceedings against legislators, these privileges may affect the administration of justice and resulting in injustice and unfair treatment in the eyes of the law.
5. Inequality: The special privileges granted to the law-makers create unequal treatment and undermine the principle of equality in law. 

FREEDOM OF SPEECH UNDER ARTICLE 19 (1) (a) AND ARTICLE 105 & 194 (a)

The Freedom of Speech guaranteed under Article 105 (a) is distinct from that guaranteed under Article 19 (1) (a). This was delineated in Alagaapuram R Mohanraj v. TN Legislative Assembly (2016) the Supreme Court elaborated on the differences in these freedoms as follows:

• The freedom of speech under Article 19 (1) (a) is bestowed upon every citizen, the freedom of speech under Article 105 and Article 194 is only guaranteed to the elected members of the legislature.
• Freedom of speech under Article 19 (1) (a) is inalienable, while on the other hand the freedom of speech under Article 105 & 194 are only operative till the tenure of the member in the legislature and parliament. Once the tenure lapses, they don`t possess such privileges except for the freedom of speech under Article 19.
• Articles 105 and 194 are only functional within the premises of the legislative bodies, while Article 19 (1) (a) does not have any geographical restrictions. Thus, anything said or done outside the premises of the legislative body that is not concerned with the discharge of legislative duties is not immunized.
• Article 19 (1) (a) is subject to reasonable restrictions, as mentioned in Article 19 (2). However, Article 105 & 194 is not subject to such constitutional restrictions. This freedom under Article 105 is independent of freedom of speech conferred under Article 19 (1) (a) and is not restricted by the exceptions contained therein.

Thus, in this case it was observed that these two freedom of speeches under Article 19 (1) (a) and Article 105 & 194 are independent of each other. The court emphasized that any right or immunities of the members of the House do not go beyond the precinct of the House thus, invalidating any claim under Article 19.

LANDMARK JUDGMENTS

P.V. Narasimha Rao v. State (CBI/SPE) [1998]

After the general elections for the tenth Lok Sabha held in 1991, Congress emerged as the single largest party and formed a government with PV Narasimha Rao as the Prime Minister. A no-confidence motion was passed in the House with result of 265 members voting against the motion and 251 members voting in support, falling short of 14 votes to pass the motion. A group of MPs belonging to the JMM party voted against the motion, and another MP from JD party abstained from voting. It was alleged that PV Naramsimha Rao had sent out several lakhs of rupees to defeat the no-confidence motion. A complaint was filed before the Central Bureau of Investigation alleging criminal conspiracy and corruption. The cognizance of offence was taken by the Special Judge, Delhi. The High Court later dismissed the petition that was filed by the accused. Appeals were made before the Supreme Court of India, where a five-judge bench, in a 3-2 final verdict, held that legislators were immune from prosecution for taking bribes to speak or vote in a particular manner. The opinion laid out in this case is crucial. The majority opinion in this judgment, which was supported by the former CJI Bharucha, was that the bribe-takers who acted in the particular conspired manner were protected under Article 105(2) of the Constitution. However, the member from the JD party who abstained from voting does not enjoy the same immunity. The expression “in respect of” in Article 105(2) must be interpreted in a broader sense and thus it must include anything that is said or done “in respect of” legislative duties within the legislative premises. The conspiracy and acceptance of the bribe by the bribe-taker were at the nexus of Parliamentary vote for the no-confidence motion. It was observed that the bribe-giver does not enjoy  immunity and can be prosecuted. The majority opined that a narrow construction of the Constitution could run the risk of compromising the guarantee of an effective parliamentary democracy. 

Sita Soren v. Union of India (2024)

This is one of the landmark judgment of 2024 and potentially the most important judgment in political institution. The Supreme Court overturned its own 25-year-old judgment that protected the legislators from prosecution, thus upholding the principle of equality before law. In this case, Sita Soren, the appellant and a member of Legislative Assembly of Jharkhand belonging to JMM party, accepted a bribe from an individual candidate to cast a vote in his favour for the election of two seats in the Rajya Sabha. However, she never voted in favour of the bribe-giver and instead voted in favour of a candidate belonging to her own party. This was observed due to open balloting for the Rajya Sabha seat. The High Court refused to quash the chargesheet and criminal proceedings against her. The appeals were made to the Supreme Court, were it was observed that bribery is not protected by parliamentary privileges and thus, the Court concurred with the majority judgment in PV Narasimha Rao (supra).

The Court observed that the word “anything” in Article 105(2) cannot be interpreted without the operative word on which it applies “said’ and “vote given”. These words apply to the action of any member of the House having the right to speak and vote. This means that the members are free to do what they desire and may claim immunity. This places courts outside the scope of interference. The word “in respect of” means arising out of or must have clear relation to their duties. The court established a two-fold test to determine the extent of privileges exercisable individually by the members of the Houses. 

The two-fold test laid down the Supreme Court is necessary to claim any immunity under Article 105 and Article 194;

• First, the privilege claimed has to be tethered to the collective functioning of the House.
• Second, the necessity of this privilege must bear a functional and operative relationship with the discharge of duties of the legislator.

The court further observed the minority judgment in PV Narasimha Rao case, which points out the paradoxical result that would emerge if members were given immunity from prosecution for their speech or vote but would not be protected if the bribe was received for not speaking or not voting. The court held that under Section 7 of the Prevention of Corruption Act, 1988, mere “obtaining,” “accepting” or “attempting” is enough to constitute an offence against a public servant even if the intention of performing of public duty was not improper. The Supreme Court delved into subject matters that were overlooked or not considered, thereby removing all the previous anomalies.

SUGGESTIONS

The parliamentary privileges ensure that the legislators can represent people`s grievances and issues and can stand against government policies. The key components of any democracy are speech and critique, which cannot be achieved without these privileges. In a historical conflict of persistence to assert people`s voice in the legislative and to gain privileges in a government run by a foreign sovereignty, the Indian Legislative has come a long way to establishing these privileges. This necessitates the need to codify the privileges and remove any ambiguity regarding their exercise. Further, it should be observed that strict actions and penalties are determined to maintain parliamentary democracy.

CONCLUSION

In conclusion, the recent landmark judgment by the Supreme Court propels the proposal to codify ‘Parliamentary Privileges’. The freedom of speech provided under parliamentary privileges differs from that under Article 19. The exercise of these privileges must be in regard to the legislative duty to ensure there is no inequality. Corruption and bribery in legislative bodies erode the bedrock of Parliamentary democracy. It is detrimental to the ideals of the Constitution and creates a polity that tampers with the representative character of Parliament and lowers the accountability of legislators. The Supreme Court has upheld the principle of equality in law and integrity within the parliament by withdrawing the immunities of lawmakers in criminal proceedings. 

Author: Harsh Desai Sneha

College Name: CWC Law College (Mumbai University)