Privileges Of The Parliament (articles 105 And 122)
Introduction
Individually and collectively, members of parliament are granted particular privileges and immunities that help them perform their duties effectively. The state-specific clauses are 194 and 212, and these rights and immunities are in accordance with articles 105 and 122 of the Indian Constitution.
Concept of Parliamentary Privileges
• Parliamentary privilege is the totality of the special rights that each House collectively and each member individually enjoys that outweigh those that belong to other groups or individuals and without which they are unable to carry out their duties.
• While certain privileges are only subject to custom and parliamentary legislation, others are governed by statute.
Historical Background of Parliamentary Privileges
• As a result of the 1833 Charter Act, the governor- general's council was expanded to include a fourth member, setting the stage for the development of Parliamentary powers in India. A brand-new type of legislative framework was developed. This laid the foundation for an organization that eventually developed into a fully functional legislative body.
• The formal opposition to the assembly's privileges decreased after the Indian Councils Act of 1909 made indirect elections to the legislature possible.
• The Government of India Act of 1935 guaranteed free expression in the legislature.
• Some of the privileges of Parliament, including those of its members and committees, are now protected by the Constitution, and the House is governed by specific laws and procedural norms; nevertheless, some rights still rely on precedents from the House of Commons.
• The main constitutional provisions pertaining to parliamentary privileges in India are found in articles 105 and 122, while articles 194 and 212 deal with state-specific requirements.
Sources of Privileges
The following are the privileges' five sources:
1. Constitution-Provision
2. Different laws passed by Parliament
3. Rules for each House
4. Parliamentary conventions
5. Judicial Interpretations
Constitutional Provisions Regarding Parliamentary Privileges
• The two houses of parliament and their committees' members are granted special rights, immunities, and exemptions under Articles 105 and 194.
• The Attorney General of India and Union Ministers are among those who are granted these powers if they speak or participate in any committee of the Parliament.
• President, who is a vital member of the legislature, does not get to enjoy these priviledges.
• The Constitution's 44th Amendment changed Article 105 (3), which now contains two parts.
• Each House of Parliament, its Members, and Committees shall have the authority, privileges, and immunities as may be prescribed by law from time to time by the Parliament.
• As long as no specific definition of these rights, privileges, or immunities is provided by Parliament, they will be the same as those enjoyed by the House of Commons on January 26, 1950.
• Although the House of Commons has not been specifically mentioned in Article 105 (3), these privileges nevertheless apply until Parliament passes legislation.
Types of Parliamentary Privileges In India
Collective Privileges
Collectively, each House of Parliament has the following privileges:
• The capacity to both publish reports, discussions, and proceedings and to prohibit others from doing the same. Under the freedom of the press, it may publish accurate reports of parliamentary proceedings without the House's consent. This right of the press does not, however, apply in cases of secret House meetings.
• Keep outsiders away from the gathering and arrange secret meetings to discuss important subjects.
• Make regulations to control its own operations and business dealings, as well as to decide on such matters.
• A member has the right to immediate informed of their arrest, detention, conviction, imprisonment, and release.
• Ask questions and demand someone's presence.
• The actions of a House or its committees cannot be looked at by the courts.
• No one (whether a member or an outsider) can be detained inside the House, and no legal procedure (civil or criminal) can be delivered there without the Presiding officer's approval.
Individual Privileges
The benefits available to each member individually are:
• No member may be detained between the 40 days prior to the start of the session and the 40 days following its conclusion. This privilege is only available in civil cases; it is not available in criminal proceedings or instances involving preventive custody.
• Members of parliament have the freedom to speak their minds. Any statements made or votes cast in the parliament or its committees are not subject to judicial review. The articles of the Constitution as well as the conventions and procedures governing how Parliament conducts itself place restrictions on this freedom.
• When Parliament is in session, members are exempt from jury duty. They are free to testify in court without providing any proof.
Freedom of publication is guaranteed by Article 361-A.
• The 44th Amendment to the Constitution added Article 361-A, which states that unless malice was proven, no one shall be subject to any proceedings, civil or criminal, in any court of law regarding the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or Legislative Assembly. Radio and television broadcasts are also granted a similar exemption. Prior to the 44th Congress, newspapers may publish reports of parliamentary proceedings.
• The Supreme Court held in the well-known Searchlight case that it is a breach of privilege to publish erroneous or mangled versions of statements made in the House or to misreport the proceedings.
• The Court ruled that, although being protected by Article 361A, the guilty party may nonetheless initiate legal action if certain portions of proceedings that were purged by the House are published by a newspaper.
• The Supreme Court also ruled that the House might forbid the publication of any discussions or procedures, even though doing so would violate Article 19 (1) (a)'s protection of the right to free speech.
Internal Autonomy Provisions under Parliamentary Privileges
• Similar immunity is granted to internal House operations under Article 122(1). Any apparent irregularity or procedure cannot be used to contest the legality of any proceedings in Parliament.
• In addition, Article 122 (2) states that while doing their duties, Parliamentary officers in charge of maintaining order and regulating its proceedings are not subject to the jurisdiction of any court. The functioning of the House of Parliament is so unhindered by judicial oversight.
• Any action taken against a member, including an arrest, cannot be used as grounds for suing the speaker for damages. Even though the subject of the law is supra vires, a High Court or Supreme Court cannot issue a writ under Article 226 or Article 32 to impede the operation of the House or legislation. The courts can only rule on a bill's legality after the President has given his or her approval and it becomes a law.
• As a result, the House is exempt from legal proceedings, and as a committee is one of the means by which a House operates, this courtesy is also extended to the Committee of the House. However, a court of law has the authority to investigate the legality or constitutionality of a method.
A Breach of Privilege Is What?
Any violation of a Member of Parliament's or Parliament's privilege is a breach of privilege. Any activity that "casts reflections" on lawmakers, the legislature, or its committees may be deemed a violation of privilege, among other reasons. This could involve the publication of news articles, editorials, or claims made in interviews for newspapers, magazines, television, or in public speeches.
Parliamentary Privileges' Benefits
• As a result, tensions are reduced, goodwill is fostered, and cooperation between the two parts of government is encouraged: The parliamentary system of government encourages collaboration between the executive and legislative arms of government, which is advantageous.
• Quicker and more effective judgment: To enable quicker and more effective decision-making, the parliamentary system is integrated with the legislative and executive arms of government.
• Less employees and money are needed because the legislative and executive work together to administer a cabinet system of government in a parliamentary system of government. Unlike a presidential system, where each branch of government is divided and staffed by a different group of individuals.
• It promotes wise leadership: The parliamentary system of government also encourages excellent governance for the effective management of the nation because it motivates all cabinet members to put in a lot of effort thanks to the individual and collective duties granted to the parliament. Additionally, accountability and transparency are guaranteed.
Parliamentary Privileges Issues
• While a parliamentary system may seem to always favor good governance, it can also breed too confident and strong lawmakers, which can result in the abuse of political power. The legislative system will elevate and make untouchable members of parliament.
• The prime minister is devoted to his party rather than the country's citizens since, in a parliamentary system of government, he is directly elected as the head of his party. He will therefore have a greater loyalty to his party than to his people.
• The prime minister's position is unquestionably unstable in a parliamentary system of government because the legislature has the power to remove him at any time with a "vote of no confidence." This might lead to a crisis, segregation, or unstable government.
• Due to the convergence of legislative and executive responsibilities, members of the cabinet may be overworked and certain ministers may not be able to keep up.
• Finally, it is important to keep in mind that, although if the parliamentary system requires people to undertake both legislative and executive duties, a minister's lack of expertise may lead to inefficiencies in one branch of the government's management.
Measures
• Parliamentary Privileges Must Be Codified - Therefore, it is imperative to codify the House's rights, powers, and immunities. It will eliminate current doubts and offer appropriate guidelines that should be followed. Free expression and the application of the law ought to be the rule, not the exception, in a democracy.
• In the Searchlight case, Justice Subba Rao vehemently argued in favor of codifying privileges rather than adhering to custom. The constitution's creators believed that the House's privileges should not be drafted in a rush but rather be given time to develop and be nurtured before being codified. Therefore, it is now necessary to codify rights, powers, and privileges because doing so will not only give people a clear path to follow but will also protect them from being used improperly.
Conclusion
In order for the parliament to function effectively, members are given privileges. The foundation of democracy will be lost if privileges are not granted in accordance with fundamental rights, which are necessary to protect citizens' rights. It is the duty of the parliament to respect all other rights guaranteed by the constitution. They must always keep in mind that their powers do not make them corrupt.
Because of this, it is frequently effectively decided that when deciding on privileges, the house cannot simply adopt a British equivalent, but instead must decide and analyze if it matches Indian Democracy and does not insult the state's Republic characteristic.