Author(s): Ishan Chhokra
Paper Details: Volume 2, Issue 3
Citation: IJLSSS 2(3) 17
Page No: 167- 177
ABSTRACT
This comparative study explores the evolution, scope, and application of parliamentary privileges in three prominent democratic nations: the United States, the United Kingdom and India. Parliamentary privileges, which safeguard the functioning of legislatures, vary significantly across these countries due to their distinct historical and constitutional contexts. In England, parliamentary privileges have deep roots in the unwritten constitution and the long struggle between the Crown and Parliament, evolving into a comprehensive set of rights and immunities that preserve legislative independence.
The United States, while influenced by British practices, adopted a more codified approach within its written Constitution, where the privileges are specifically enumerated and often scrutinized by the judiciary to balance the separation of powers. India, inheriting the British parliamentary framework, has a unique blend of written and unwritten privileges that reflect its colonial legacy and post-independence constitutional developments. This study examines the key similarities and differences in the conceptualization and practice of parliamentary privileges in these three countries.
It also delves into the challenges posed by modern democratic principles, particularly the tension between parliamentary sovereignty and judicial review. The research underscores how historical experiences, legal traditions, and political contexts shape the interpretation and application of parliamentary privileges. Through a comparative lens, the study provides insights into the effectiveness of these privileges in protecting legislative processes while maintaining the checks and balances essential for democratic governance.
Keywords: Parliamentary privileges, legislative independence, judicial review, parliamentary sovereignty, comparative constitutionalism.
INTRODUCTION
Law does not distinguish between individuals or entities. However, in order to preserve the integrity of the law, certain unique rights known as “privileges” are granted to legal institutions, legislative bodies, and individuals of distinction who are deemed deserving of special acknowledgment by the government and society. Parliamentary privilege is the total of the unique rights that each House collectively and each Member of each House have, which are distinct from those held by other entities or people and without which they could not perform their duties. Consequently, privileges are in some ways an exception to the general law even if they are a component of the law of the land.
It is more difficult to define than the scope of the illimitable powers or privileges that each House of Parliament possesses under the heading of privilege or under the law and custom of Parliament, according to Dicey. The word “privileges” has been interpreted by different authors around the world in accordance with the standards and conditions prevalent in their respective nations. India defined privilege as “A special right, advantage or benefit conferred on a particular person” in the case of Raja Ram Pal v. Hon’ble Speaker[2]. One individual has a specific advantage or benefit given to them in comparison to another in order to perform certain tasks. The phrase “special grant” implies some kind of special grant by the sovereign and implies something separate and distinct from a common right that is enjoyed by everyone.
Because the House cannot carry out its duties without the unrestricted use of the services of its members, some rights and privileges, such as the right to be free from arrest or the freedom of speech, are largely the property of individual members of each House. For the protection of its members and the upholding of its own authority and dignity, each House jointly has other rights and immunities such as the authority to penalise for disrespect and the authority to govern its procedure. [3]
However, it is illegal and considered a violation of privilege if any of these rights or immunities are ignored or assaulted. Each House asserts the right to punish for acts of contempt, which include disobedience to its proper commands, libel against itself, its members, or its officers, even when they do not violate any specific privileges but nonetheless obstruct or impede them in carrying out their duties.
POSITION IN INDIA
HISTORY OF PARLIAMENTARY PRIVILEGES IN INDIA
The Indian Council Act of 1861 established the first representative institutions in India, but it did not grant the House of that council any privileges, powers, or immunities. This legal situation persisted up until the Government of India Act of 1919, which granted the House of Legislatures a limited right to free speech.[4] The Government of India Act, 1919 also granted exemption from responsibility for publishing any matter in official proceedings in addition to freedom of expression. Members of the legislature were protected from civil process arrest or custody during sessions of the legislature or any of its committees for 14 days prior to and following such meetings thanks to a 1925 amendment to the Civil Procedure Code. Members were exempted from participating as jurors or assessors by a similar change to the Criminal Procedure Code.[5]
The Government of India Act of 1935 is a second landmark in the road to fully accountable government. ‘Freedom of Speech in the Legislature’ was guaranteed by Section 28[6] of the Act, along with immunity from legal action for anything said or voted on by him in the legislature or a committee and immunity from legal action for the publication of any reports, papers, votes, or proceedings by or with the consent of either chamber of the legislature.
The Section 28 of 1935 Act was very much similar to the Article 105 of the Constitution of India, 1950.
On the coming into force of the Indian Independence Act, 1947 orders were passed by the Governor General in the exercise of powers conferred on him by clause 1 (c) of Section 9 of the Act of 1947 to amend the Government of India Act 1935. First of all, Act of 1947 declared clauses (3) & (4) of Section 28 to make equal the immunities of the members of the House of Indian Legislature with those of the members of the House of Commons of United Kingdom; though the full powers and privileges of the House of Commons as a body, were not vested in the legislature as a body, which had placed fetters on the law-making powers of the central legislature of its privileges.[7]
PROVISIONS DEALING WITH THE PARLIAMENTARY PRIVILEGES IN INDIAN CONSTITUTION
The power privileges and immunities of the Indian state legislature and its members are covered in Articles 105[8] and 194[9] of the country’s constitution, respectively. The rights of Indian parliamentarians are not fully listed in this country’s constitution. Since the House of Commons’ privilege at the start of the constitution was specifically mentioned in Section 3 of both of these provisions. Therefore, it primarily addresses all of the privileges that were in place in the House of Commons as of January 26, 1950[10]. The Jammu and Kashmir Constitution’s Section 72.[11]
FORTY FOURTH AMENDMENT ACT, 1978: TO THE CONSTITUTION
In the twenty-ninth year of the Indian Republic, the parliament passed this Act. By virtue of sections 15 and 26, this Act altered several articles of the Constitution, including Articles 105 and 194.
According to Section 15 of the Act, the words, figures, and brackets “shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the constitution (44th, Amendment) Act, 1978” shall be substituted for the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this constitution” in Clause 3 of Article 105 of the Constitution.
According to Section 26 of the Act, the words, figures, and brackets “shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (44th Amendment) Act, 1978” shall be substituted for the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this constitution” in Clause (3) of Article 194 of the Constitution.[12]
State legislatures hold the same position as the Houses of Parliament in terms of privileges under Article 194. Therefore, the state legislatures are also covered by what is said in relation to Article 105. Article 105’s clauses (1) and (2) deal with the members of parliament’s freedom of speech and expression as well as their right to have parliamentary proceedings published. There are no specific provisions in the Article regarding other matters, but it is stated that laws may be made by parliament, and until such time, the privileges of that House, its members, and committees shall be those in effect prior to the effective date of section 15 of the Constitution (44th Amendment) Act, 1978.
These privileges and immunities are connected to each House collectively as well as to its members individually in order to allow the parliament to work and act without interference or obstruction from any quarter, without fear or favour. Because a House cannot operate properly without the unhindered and continuous use of its members’ services, lawmakers have been granted slightly more personal freedom and freedom of speech than the average individual. Each House is granted privileges in order to uphold its legitimacy, reputation, and power as well as to shield its members from impediments to their fulfilment of their parliamentary duties. Legislative privileges are thought to be necessary for the House to carry out its constitutionally mandated duties of conducting business and upholding its authority.[13]
PARLIAMENTARY PRIVILEGES IN ENGLAND
The King-in-Parliament is the collective name for the three institutions that make up the English parliament: the King, the House of Lords, and the House of Commons. No individual or body is recognised by English law as having the authority to overrule or set aside the laws of parliament, and the parliament has the ability to enact and amend any law at any time.[14] The most notable aspect of the English Constitution is the legislative omnipotence of Parliament. It took time for Parliament to establish its legislative sovereignty.
The King, the Judges, and the Houses of Parliament have all attempted to claim independent legislative authority apart from parliament throughout history, but all of these competing claims have been overturned through arduous constitutional struggles. In England, the monarchy used to be absolute, and the king technically held all power. As a result, the King-in-Council held the power to enact legislation, and even after a representative assembly was established, the system of Royal legislation through ordinance and proclamations persisted. Under the Stuarts, they asserted a variety of tactics to override parliament, including:
- legislating by proclamations; [15]
- imposing taxes without the consent of parliament; [16]
- dispensing with existing laws for the case of particular individuals; [17]
- suspending the operation of existing statutes. [18]
But Parliament ultimately prevailed in the conflict between it and the Crown. The Great Constitutional Charters—The Petition of Rights (1628), The Bill of Rights (1688), and The Act of Settlement (1701)—contain the outcomes of this victory. The last of these effectively put an end to the conflict and established the boundaries of the Royal authority in line with Parliament’s wishes.
The Commons had a more arduous and protracted battle to maintain their own privileges because they were historically the weaker body, not only against the Crown and the courts but also against the Lords. What originally fell under the King’s special protection started to be asserted by the commons as customary rights, and some of these claims eventually led to legally recognised “Privileges” that the commons could use to defend their independence from outside threats.[19]
While certain privileges are governed purely by parliamentary law and practise, others have statutory definitions. All privileges, regardless of type, are grounded solely on these grounds. The Lords have always enjoyed them because they have a position and a voice in parliament, but the Commons have developed a custom that appears to subject their privileges to royal favour. Every parliament has a tradition of having the speaker, speaking for and on behalf of the commons, make a formal claim to a number of uncontested rights and privileges, including freedom of speech during debate, freedom from arrest, and access to Her Majesty whenever necessary, as well as that all of their proceedings be given the most favourable interpretation. The Lord Chancellor responds to the speaker’s plea by stating, “Her Majesty most steadily confirms all the rights and privileges which have ever been granted to or conferred upon the commons, by Her Majesty or any of her royal predecessors.” This is done in accordance with a Royal Commission under letters patent.
Claiming these rights become a habit over time. In the reign of Henry IV, the speaker’s only right to speak for the Commons was for himself, with the understanding that any mistakes he made would be corrected by the House if they were brought to the King’s attention. There was a clear demand for access to the crown in 1536. The demand for freedom of speech appeared in 1541, and in 1554, three demands—freedom from arrest, freedom of speech, and access—were presented concurrently. The practise appears to have been commonplace by the end of the sixteenth century.
The Speaker’s Report to the House further acknowledges the crown’s authority over the Commons’ privileges by stating that these privileges have been granted or allowed in the same full and ample manner by Her Majesty or any of her royal ancestors as they have been in the past. This custom likely has its roots in the historic practise of the King assenting to petitions from the Commons that received the advice and permission of the Lords in order to confirm laws that were already in effect in Parliament. Before firmly establishing their place in parliament, the commons relied on the Lords to enforce their privileges. The House of Commons made an effort over time to elevate its privilege to the level of an unchallengeable power. The speaker is the officer of the House, according to the Sheriff of Middlesex Case, and when there was contempt of the House, the speaker had immediate power.
Up until the British Constitutional Reforms Act of 2005, the House of Lords was a Court of Record and the last court of appeal from common law courts. The two Houses first convened together, but subsequently the king requested that knights and other representatives from shires, cities, and towns be called to attend in his councils, and the House of Commons emerged as a separate body. As a result, the House of Commons was a body of councillors who were elected, while the House of Lords was a body of councillors who were called by name. The House of Commons could only communicate with the sovereign through a member they picked from among themselves to serve as their spokesperson or speaker. The name of the House of Commons still refers to this unique role and functionary.
Following a conference, the two Houses of Parliament decided in 1704 that neither House of the Parliament had the authority to declare or vote for new privileges for itself that were not supported by established laws and customs of parliament, as was argued by the commons. The rights, privileges, and immunities of the House of Commons are so evidently permanent after 1704, unless they have been periodically increased, decreased, or renounced by law.
PARLIAMENTARY PRIVILEGES IN AMERICA
According to Dr. Garner, the US has a presidential system of government, which “is the system in which the executive (including both the head of State and his ministers) is constitutionally independent of the Legislature with respect to the duration of his or her tenure and irresponsible to it for his or her political policies.” In such a system, the head of the State actively utilises the powers that the constitution and laws grant him, as opposed to merely acting in that capacity. The real powers of the government are enjoyed by the President under this system.
According to Article 1 of the American Constitution, which states: “All Legislative Powers Herein Granted Shall Be Vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives,” the legislative authority of the American government is vested in the legislature. As a result, the Congress serves as the American Government’s primary legislative body.
According to Article 1, Section 6, “The Senators and Representatives shall, in all cases, be exempt from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, which shall not be questioned in any other place.”
One of the defences made by the English Parliament in its conflict with the crown, and enshrined in the English Bill of Rights, was immunity from arrest during legislative sessions. The court has construed the words “Treason, felony, or breach of the peace” as excluding any criminal offences from the scope of the privilege. As a result, arrest in civil lawsuits—which were common when the constitution was enacted but are now uncommon—remains the only circumstance that qualifies for an exemption from arrest during a House session. Service of process in either civil or criminal cases is exempt from the immunity.
Both Houses of Congress have the authority to set the rules for their deliberations, discipline their members for disruptive behaviour, and, with the support of two thirds, remove a member. The legitimacy of the clause allowing each House to set its own procedural rules cannot be questioned. Without the power, it would be completely impossible to conduct national business—either at all, or at the very least, with decency, consideration, and order.
If there was no ability to penalise for disorderly behaviour or disobedience to the rules, the ability to set regulations would be useless. The ability to expel a member for extremely aggravated misconduct was also essential, not as a common but as an ultimate remedy for the grievance, because a member might be so devoid of all sense of dignity and duty as to dishonour the House by the heinousness of his conduct, or interrupt its deliberations by persistent violence or clamour. However, this authority has been restrained by the requirement that two thirds of the members must agree to justify an expulsion. This clause, requiring two-thirds approval, was added by a vote of ten States, with one vote being split. It was not included in the original draught of the constitution.
There does not appear to have been any authoritative decision made by either House of Congress about the disruptive behaviour that the House may punish or what penalty, other than expulsion, may be administered. However, it is believed that members can only be disciplined for misbehaviour committed during a congressional session, whether inside or outside the House. Expulsion might result from criminal activity that was committed anywhere. William Blount was dismissed from the Senate in July 1797 due to “a high misdemeanour, wholly inconsistent with his public trust and duty as a Senator.” The offence against him was an attempt to distract an American agent working among the Indians from his duties, to undermine Indian trust in and affection for American public officials, and to negotiate with Indians on behalf of the British Government.
The United States House of Representatives’ privileges include the inherent authority to imprison a non-member for contempt of the House and the ability to penalise individuals exclusively for actions that tend to obstruct or prevent the performance of legislative tasks. The United States Supreme Court ruled in Kilbourn v. Thompson that the House of Representatives lacked the general authority to punish for contempt and that the English Parliament’s precedents prohibiting the punishment of non-House members for contempt did not apply to the American House of Representatives. The Supreme Court ruled in that case that the House of Commons in England did not possess intrinsic legislative authority but rather a judicial authority inherited from the times when it met with the other House as a single body.
The freedom of speech provided to legislators under Article 1 Section 6 still exists, and it is established that they may not be questioned “in any other place” regarding any speech or discussion. This means that only the House or Senate itself may bring a libel or slander claim against them or otherwise hold them legally liable for words made while acting in their official role. In addition to the words said on the floor of Congress, written reports, proposed resolutions, the act of voting, and other actions taken by a member of that body during a session pertaining to the matter before it are all covered. In Kilbourn v. Thompson, the court also ruled that because the House members had started the legislative proceedings that led to the plaintiff’s arrest, they were not subject to a lawsuit for false imprisonment.
In the case of Dombrowski v. Eastland, the Supreme Court decided that a Senator could not be held liable for allegedly conspiring to violate the civil rights of a group of Louisianan civil rights activists. The court ruled that members of Congress “should be protected from the burden of self-defence as well as from the consequences of litigations results.” The court did rule that the council for Senator Eastland’s internal security subcommittee must go to trial on allegations that they plotted an illegal New Orleans raid with the senator and Louisiana officials. The immunity theory “is less absolute, although still applicable, when applied to officers or employees of a legislative body, rather than to legislators themselves”
In United States v. Johnson, the “Speech or debate” clause’s broad protection was maintained. A lawmaker was found guilty of conspiring with private interests to defraud the United States after giving a speech on the House floor in exchange for payment from these interests. The government argued that the “speech or debate” clause only prohibited prosecutions based on a speech’s content, such as libel lawsuits, but not those based on the antecedent illegal behaviour of receiving bribes. However, the Supreme Court ruled unanimously that the clause’s goal was to shield lawmakers from “intimidation by the executive and accountability before a possibly hostile judiciary” and that any judicial investigation into a congressman’s speech’s motivation was therefore unconstitutional. This conclusion stemmed from the long struggle of parliament for independence from the King and his courts.
In Tenny v. Brandhove[20], Brandhove filed a lawsuit against members of a California legislative committee, claiming that the summons was issued not for legislative purposes but rather to frighten Brandhove and prevent him from exercising his right to free expression. Legislative immunity was developed in the English Parliament and transferred to the United States in both the federal and state constitutions, according to Justice Frank Furter. Immunity has numerous uses.
CONCLUSION
A comparative study of parliamentary privileges in America, England, and India reveals both similarities and differences in the way these privileges are defined and protected in each country. In all three countries, parliamentary privileges are a means of protecting the functioning of the legislature and ensuring that members can carry out their duties without fear of interference or prosecution. However, the scope and nature of these privileges vary between countries.
In the United States, parliamentary privileges are limited to speech and debate in Congress, and are protected by the Constitution. In England, parliamentary privileges are broader, and include freedom from arrest, freedom of speech in Parliament, and the right to exclude non-members from the House of Commons. In India, parliamentary privileges are also broad and include freedom of speech in Parliament, the right to publish reports of parliamentary proceedings, and the power to punish for contempt of Parliament.
Despite these differences, all three countries face challenges in balancing parliamentary privileges with other rights and protections, such as freedom of speech, judicial review, and accountability to the public. For example, the use of parliamentary privileges to silence critics or shield members from prosecution can undermine public trust in the democratic process. Overall, a comparative study of parliamentary privileges in America, England, and India highlights the importance of carefully balancing the protection of the legislature’s independence and integrity with the need for accountability and transparency in democratic systems.
[1] BA LL. B (Hons.), UPES, Dehradun.
[2] Raja Ram Pal v. Hon’ble Speaker, (2007) 3 SCC 184.
[3] May Erskine, Parliamentary Practice p. 75 (Lexis Nexis, Butterworths 23rd Edition. 2004).
[4] V.G. Ramachandran, The Law of Parliamentary Privileges in India: A Comparative study, Eastern Book Company (1996).
[5] S. H. Belavadi, Theory and practice of parliamentary procedure in India p. 232 (Published by N. M. Tripathi Pvt. Ltd, Bombay, 1988).
[6] S28(1) Subject to the provisions of the Act and to the rules and standing orders regulating the procedure of the Federal Legislature/there shall be freedom of speech in the legislature and no member of the legislature shall be liable to any proceeding to any court in respect of anything said or any vote given by him in the legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either chamber of legislature of any report, paper, votes or proceedings.
(2) In other respects, the privileges of members of the chambers shall be such as may from time to time be defined by Act of the Federal Legislature and until so defined, shall be such as were immediately before the establishment of federalism enjoyed by members of the Indian Legislature.
(3) The provisions of the sub-sections (1) & (2) of this section13 shall apply in relation to persons who by virtue of this act have the right to speak in and otherwise take part in the proceedings of the chamber as they apply in relation to members of the legislature.
[7] M. A. Qureshi, Indian Parliament; Powers, privileges, immunities, P. 55 (Deep and Deep Publication 1st Edition, 1994).
[8] INDIA CONST. Article 105 Powers, Privileges, etc., of the House of Parliament and of the members and committees
[9] INDIA CONST. Article 194: Powers, privileges, etc., to the House of Legislature and of the members and committees
[10] Supra note 6.
[11] FORTY FOURTH AMENDMENT ACT, 1978: Section 72: Powers, privileges, etc., to the House of Legislature and of the members and committees
[12] M. V. Pylee, Constitutional Amendments in India p. 211 & 214 (Universal Law Publishing, New Delhi, 3rd Edition 2003).
[13] M. P. Jain, Indian Constitutional Law p. 85 (Wadhwa Publication, Nagpur, 5th Edition. 2005).
[14] M.A. Qureshi, Indian Parliament Powers, Privileges, Immunities p. 30 (Deep & Deep Publications, New Delhi 1994).
[15] The case of Proclamations- (1611) 12 Co. Rep. 63.
[16] Bate’s Case, 1606; 2St.Tr.371.
[17] Thomas v. Sorrel, (1674) VA VGHAN 330.
[18] Seven Bishop’s Case (1688) 12 StTr. 183.
[19] W. S. Holdsworth. History of English Law, Book II Pt. I.C. 6 (Sweet and Maxwell, 1966).
[20] Tenny v. Brandhove, 341 U.S. 367 (1951).