Time to define Parliamentary Privileges

In a judgment titled State of Kerala v. K Ajith, the Supreme Court recently held that the members of legislative assembly (MLAs) against whom prosecution has been initiated for alleged criminal acts in the assembly cannot claim immunity under Article 194 of the Constitution of India.

The Bench of Justices DY Chandrachud and MR Shah rightly observed,

“To claim exemptions (by legislators) from the application of criminal law would be to betray the trust which is impressed on the character of the elected representatives as the makers and enactors of the law.”

To arrive at this ratio, the apex court has relied much on English court precedents. Before elaborating on those, we shall first discuss Articles 105 and 194 of the Constitution.

As legislators are elected representatives of the citizens, it is their bounden duty to air the grievances of the people who have voted them to power. Parliament/State legislatures are considered as the best platform to voice the issues of the public. As legislators represent the voices of their voters, the Constitution framers thought it wise to provide them certain powers and privileges. Therefore, Articles 105 and 194 were inserted into the Constitution to ensure free and healthy debate in Parliament and the State legislatures.

Articles 105 and 194 are the “privilege provisions” in the Constitution. Both Articles are similarly worded. The only difference is that while Article 105 applies to Members of Parliament (MPs), Article 194 applies to MLAs.

Article 105(1)/194(1) provides for “freedom of speech” in Parliament/legislature of every State. But this freedom is subject to provisions of the Constitution and standing orders regulating legislative house procedures. It is to be noted that “freedom of expression”, which is provided to citizens under Article 19(1)(a), is not provided to legislators under Article 105(1)/194(1). It could be because the Constitution framers thought that the main function of the legislators is to discuss on Bills tabled before the House and issues of national importance. Therefore, they should be provided protection only for the things said or debated, and not any kind of expressions, like acts of vandalism, assault, etc.

The first part of Article 105(2)/194(2) immunises legislators from facing the wrath of the courts “in respect of” anything said or any vote given in Parliament/State legislature. The expressions “in respect of” has been given such wide interpretation by our Supreme Court that even the act of giving and taking bribes to “vote” against a no-confidence motion has been held as being guarded by Article 105(2). One limitation for enjoying this right is that “anything said or vote given” should be during the sitting of Parliament and in the course of the business of Parliament. With the exception of the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties under Article 121/211, the Parliament/State legislature can discuss and condemn any act of the person.

The second part of Article 105(2)/194(2) gives immunity to a “person” in respect of the publication of any report, paper, votes or proceedings by or under the authority of the house.

Article 105(3)/194(3), which is topic of this article’s discussion, confers competence to the Parliament/State legislature to enact a law defining their powers, privileges and immunities, over and above the ones encapsulated under Articles 105(1) & (2)/194(1) & (2). Till such law is made, the MPs and MLAs are given the same powers, privileges and immunities as the members of House of Commons of United Kingdom had at the time of commencement of the Constitution of India.

What did Constitution framers intend?

While engrafting Articles 105 and 194 into the Constitution, when a few of the Constituent Assembly members objected to citing the example of United Kingdom, Alladi Krishnaswamy Ayyar, who was supported by Dr BR Ambedkar, gave two reasons: one, Members of British Parliament had wider privileges than members of Indian legislatures had at that time. Hence it would be apt to rely on British practices. Secondly, due to shortage of time, the Constituent Assembly cannot take for itself the onerous task of determining the long list of privileges and immunities. Therefore, it had left this task for future legislatures to determine their own privileges and immunities. Ayyar made it very clear that this reliance on House of Commons culture is a temporary measure till the Parliament/State legislature makes a law.

What did Constitutional law experts opine?

HM Seervai, in his magnum opus Constitutional Law of India: A Critical Commentary, opined that the House of Commons culture under Article 105(3)/194(3) was not a transitory provision, because, firstly, it was not put in the temporary chapters under Part XXI. Secondly, it was not intended to operate for limited period of time as Articles 334, 336 & 337 are there. Thirdly, states, dominions and colonies of the British did not give up the practice.

On the contrary, another Constitutional law expert, DD Basu, in his book Commentary on the Constitution of India, rightly argued on the need for legislation defining parliamentary privileges. In fact, Basu counters Seervai’s view by saying that - (1) there is no reason to hold that the power to legislate was conferred never to be exercised, for no provision of a Constitution is to be taken as superfluous or nugatory; (2) though there is no legal obligation on the part of Parliament to exercise the power under Article 105(3)/194(3), there is a question of constitutional propriety or morality. The consideration of “propriety” arises because of the fact that our Constitution envisages a system of limited government under which there is no organ of government which is “sovereign”; (3) though there is no time-limit imposed on Article 105(3)/194(3), there are a number of other provisions in the Constitution that empower Parliament to make laws without putting a time-limit, despite the fact that Parliament has made laws relating to many of the matters with a fair promptitude.

The author’s view

It has been 71 years since India gave to itself this Constitution. However, there is still no such law enacted defining privileges and immunities of Parliament/State legislatures. Hence, the courts in India took onto themselves the task of determining what the privileges and immunities the House of Commons had as on January 26, 1950. For determining the source of a privilege or power exercised by the House of Commons, our courts mostly relied on the works of English and Commonwealth authors, the most authoritative being Sir Erskine May’s Parliamentary Practice, as well as on English court judgments. But the problem here is different authors give different opinions on an issue, which will lead our courts to draw their own conclusions.

One such instance was seen in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, whereby the “expulsion” by the Lok Sabha Speaker of some members who took cash for asking queries in Parliament was challenged. One of the contentions of the petitioners’ counsel was that the House of Commons derived this power of ‘expulsion’ because it has power to determine its ‘composition’ by itself, but the same is not the case with Indian legislatures as the Constitution has determined their ‘composition’. Therefore, Parliament cannot ‘expel’ its members. The petitioners relied on Erskine May’s work to argue this point. The majority judgment rejected this contention by relying on other authors’ works and held that this power of “expulsion” flows from “penal jurisdiction of House to punish for breaches of privileges and contempt.” Therefore, placing reliance on works of English authors to know House of Commons practices will lead to these difficulties.

Also, if we rely on opinions of authors of another country to interpret a constitutional provision of a nation which had declared itself as a sovereign nation some 71 years back, it will disparage our Constitution, which is a supreme document.

In the absence of legislation defining parliamentary privileges and immunities, courts will have to embark on defining the privileges these legislators are entitled to, as was the case in the Powers, Privileges and Immunities of State Legislatures case (“Keshav Singh”), where it was held that certain privileges enjoyed by the House of Commons including (i) right to petition the sovereign, in a body, through the Speaker; (ii) right to pass an acts of attainder and impeachment; (iii) right of the House of Commons to determine its own Constitution, namely, by the order of new writs to fill vacancies that arise in the Commons, by the trail of controverted elections, by determining the qualifications of its members in case of doubt - cannot be enjoyed by Indian legislatures. There is no quibble over the fact that the above omitted privileges by the Court are not needed for the kind of constitutional landscape India has. It is just an example to bring home the point that if the legislature leaves fallow the area which is meant for it, then courts will start cultivation into that area.

Hence, it is high time that Parliament and State legislatures exercise the powers conferred under Articles 105(3) & 194(3), respectively to define their privileges and immunities. And the legislation defining parliamentary privileges and immunities has to pass the muster of Part III of the Constitution, as held by the Supreme Court in the Keshav Singh case.

Baglekar Akash Kumar is an LL.B. graduate from Osmania University, Hyderabad. He can be reached at: akashbaglekar@gmail.com