Research Paper On “Examine The Relationship Between Parliamentary Privileges And Fundamental Rights”

Author(s): Priyanshu Tanwar, Tanya Chaudhary, Prateek Singh

Paper Details: Volume 4, Issue 4

Citation: IJLSSS 4(4) 21

Page No: 215 – 237

LIST OF ABBREVIATIONS

LIST OF CASE LAWS

INTRODUCTION

In the sacrosanct chambers of the Indian judicial system, the phrase “Fiat Justicia Ruat Caelum” is revered. This phrase literally means “let justice prevail, despite the heavens fall.” It can be inferred from the Indian Judicial System and the foremost body of the Indian Judicial System known as ‘constitution’ that equality and balance in all terms is the basic essence of the constitution. However, there still exists certain ‘privileges’ a section that is on the top of governance. So, on one hand the preamble suggests that democratic form of governance consists of the people, for the people and by the people. And on the contrary there prevails certain privileges that are to be exercised by authorities over the same people. The Indian Constitution’s fundamental principles, as stated in the preamble, guarantee its citizens’ the right to social, economic, and political justice; freedom of expression; equality of status and opportunity; and the promotion of fraternity among them all, assuring the “dignity of the individual and the unity of the nation.” The constitution as a whole is permeated with the spirit of these goals. To make these goals a reality, Part III introduced the fundamental rights. The concept of fundamental rights was already established in the Indian polity previous to the current Constitution of India under Sections 298 and 299 of the Government of India Act, 1935. Such rights are seen as fundamental because they are crucial to a person reaching his or her highest intellectual, moral, and spiritual potential. These rights are unalienable in the sense that no statute, ordinance, tradition, usage, or administrative order can restrict or eliminate a “Fundamental Right,” even though they are subject to the restrictions outlined in the Constitution itself[1]. In order to protect people’ freedom, the Fundamental Rights Statement directs the scope of government action in the proper direction. Coming to privileges, as defined by Sir Thomas Erskine May, as: “the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by the members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.” [2]Black’s Law Dictionary has defined privilege as, “a special legal right, exemption or immunity granted to a person or a class of persons, an exception to a duty”. Without these privileges, the Houses can neither maintain their authority, dignity and honour nor can protect their members from any obstruction in the discharge of their

Parliamentary responsibilities [3]although it is not a part of the law of the state, parliamentary privilege is in some ways an exception to the rule of law. Many precedents and practices from

the British Constitutional System have been adopted by us, and the influence of the British Parliament is greater than ever. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the Draft Constitution through Articles 105 and 194. The rationale behind this can be deciphered from the Constituent Assembly Debates, that the cataloguing of all powers and privileges of Parliament would have added to the volume of the Constitution and that the course of adopting the powers and privileges of the existing legislature under the Government of India Act, 1935 was inadvisable as that body hardly had any rights available to it. The constitution thus, adopted through Article 105 and 194, for Parliament and State Legislature respectively, the same powers, privileges and immunities as vested at the commencement of the Constitution in the House of Commons of the Parliament of the United Kingdom, until they were “defined by law”. The adoption of the powers and privileges of the House of Commons was only as a temporary measure, following the practice that had been followed in Australia, in Canada, and in other Dominions with advantage to secure complete freedom of speech and also the omnipotence of legislature in every respect.[4]

 LITERATURE REVIEW

 BOOKS

CONSTITUTIONAL LAW OF INDIA, DR. JN PANDEY.[5]

Late Dr. Jai Narain Pandey’s The Constitutional Law of India, is a comprehensive and lucid commentary on the Constitution of India. This is a basic and a classic choice for the law students to dive into. Author, Ex Professor of Law, Dr. J.N Pandey was a scholar from Allahabad University. The book gives a detailed overview of historical background of Indian constitution. It covers the entire constitution and deals with every article individually with a proper set of explanation for each. Further Author talks about the parliamentary privileges in Chapter 25 of the book. Peculiar rights enjoyed by members of both the houses of parliament which are mentioned under Article 105 and 194 of Indian constitution, such as freedom of

Speech in parliament and the legislature of each state. Author of the book also provides various case laws which helps to analyze the topic “Privileges of the Parliament Legislature.” Therefore, the researchers picked up few insights on ‘parliamentary privileges’ from this book.

INDIAN POLITY, M LAXMIKANTH.[6]

M. Laxmikanth’s ‘Indian Polity’ covers the political and constitutional aspects of the nation. The book’s chapter 22 discusses the content of Parliament and its sovereignty. The British parliament is associated with the concept of parliamentary sovereignty. Sovereignty refers to the supreme power of the state. Parliament is the highest authority in the United Kingdom. Its authority and jurisdiction are not constrained by any “legal” restrictions. Consequently, parliamentary sovereignty (parliamentary supremacy) is a fundamental component of the British constitutional system. The Indian Parliament is not a sovereign body in the same way that the British Parliament is. The Indian Parliament’s authority and jurisdiction are defined, limited, and constrained. Part III of the Constitution restricts the authority of the Parliament. Consequently, this chapter attempts to analyse the effectiveness of a parliamentary law that violates a fundamental right. In which the author proposes that such a violation is invalid by its very nature.

PARLIAMENTARY PRACTICE, SIR THOMAS ERSKINE MAY.[7]

The eponymous guide of parliamentary practise and procedure is Erskine May. This book contains accurate and comprehensive information on the constituent parts of Parliament, its authorities and jurisdictions, the membership of each House, financial procedure, and the debate process. This volume focuses on the Developments in Parliamentary Privilege, including the respective duties of Parliament and the courts, the search of a member’s office, and the Parliamentary Standards Act. Adaptations to the function of the House of Lords resulting from the establishment of the Supreme Court. The first use of the procedure to elect a new Speaker by secret ballot; the creation of evidence, the appointment of Public Bill Committees, the introduction of topical debates, developments in select committee practise including the election of select committee chairs, and the establishment of a Backbench Business Committee. Changes to the House Service’s organisational structure. The effect of the formation of a coalition government and considerable adjustments to member expenses on

procedural and practical concerns affecting the legislature. Chapter III discusses privileges and legislative sovereignty in detail.

 ARTICLES

NIRMALENDU BIKASH RAKSHIT, PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS.

This journal article by Nirmalendu Bikash Rakshit talks about parliamentary privileges and fundamental rights. He says, there’s no right which can be absolute or unlimited as this privilege can amount in destroying other’s rights. “There cannot be such thing as absolute and uncontrolled liberty wholly feed from restraints”, held by the Supreme Court in the case of Gopalan V. Madras. The freedom of expression has been restricted in the larger interests of state security, public order, morality, decency, defamation, and so on. This article deals with the conflicts that arose between fundamental rights guaranteed by the constitution and privileges that are extended to the parliamentarians.

HANS RAJ, EVOLUTION OF PARLIAMENTARY PRIVILEGES IN INDIA.[8]

This article talks about the evolution of privileges to a parliamentarian. How parliamentary privileges are meant to be fundamental rights to the parliamentarians. Legislators in India had no rights or privileges until 1919. Legislators in India had no punitive powers and press ca easily malign them. The courts kept on interfering in their internal affairs and arresting them. The British Government of India, on the other hand, resisted the demand of Indian parliamentarians, who received their rightful only when the country attained independence in 1947. This article also talks about the struggle of parliamentarians in achieving their privileges.

IJAS MUHAMMED, PARLIAMENTARY PRIVILEGES AND FUNDAMENTAL RIGHTS.[9]

This article talks about the relationship between parliamentary privileges and fundamental rights along with the clarification on individual spheres. It focuses on the view that it is the

Responsibility of both the parliament and the state legislatures to look carefully before making any legislation so that it does not harm any rights. It is also the obligation of representatives to use these rights appropriately and not abuse them for other reasons that are not in the interests of the general interest of the country and of the general public. This article not only contrasts Parliamentary Privileges and Fundamental Rights from each other but also enlists the essentials and importance of both in their hemispheres respectively.

DR BALJIT KAUSHIK, PARLIAMENTARY PRIVILEGES IN INDIA[10].

This article deals with the matter of parliamentary privileges from a single end. It focuses more on the privileges rather than rights given under constitution, which are fundamental in nature. It constitutes a microscopic study as to why there arouse a need for privileges for the parliamentarians. However, it does slightly talk about the contrast between Parliamentary Privileges and Fundamental Rights. It also slides into the history and origin of such privileges, signifying all the essentials as well, to come up with a better understanding.

 STATEMENT OF PROBLEM

It has often been contended that whenever there arises any kind of conflict between Fundamental Rights and Parliamentary Privileges, there is a high probability that parliamentary privileges prevail over Fundamental Rights.

Therefore, the statement of problem in the research is, “whether parliamentary privileges and fundamental rights are mutually exclusive or, are there any inflicting problems between the two?”

 HYPOTHESIS

“The Parliamentary Privileges prevail over Fundamental Rights when there is a conflict, meaning by which that there is no balance between the two.”

“The ‘sovereign people of India’ have a restricted right to free speech but ‘their representatives’ have absolute freedom of speech in the Houses.”

OBJECTIVES

1. The research aims to study whether there can be a balance carved out b/w PP Privileges and FR.
2. The research aims to find out the disparities between the rights given to public at large and to their representatives in the name of privileges.
3. The research aims to analyse the relationship b/w PP and FR.
4. The research aims to study the spheres where there needs to be a necessary distinction made b/w PP and FR.

 RESEARCH METHODOLOGY

The research methodology adopted by the researchers is “Doctrinal” form of research. The researchers are going to analyse the subject with the assistance of Books, Research Articles, Article and Book reviews, Statutes, Case Laws, Essays and Reports for the research paper.

ORIGIN & BACKGROUND

FUNDAMENTAL RIGHTS

“Fundamental rights are those certain and protected rights that are usually seen as being inherent in people and that the government cannot take away. The natural rights, sometimes known as the basic rights, are held in greater regard than other rights, such as legal rights.”

The Magna Carta (“Great Charter”) is a treaty guaranteeing English political liberty that was negotiated at Runnymede, a meadow beside the river Thames, and proclaimed by King John on 15, June215, under duress from his rebellious nobility.  By proclaiming the sovereign to be subject to the rule of law and chronicling the liberties possessed by “free men,” it paved the way for individual rights throughout Anglo-American jurisprudence.” The words of the Magna Carta were included into the constitution and bill of rights of England’s North American colonies in the 17th century. The fundamental liberties outlined in the Magna Carta are echoed in the United States Constitution (1789) and Bill of Rights (1791), and the 14th Amendment (1868) also has ties to the Magna Carta.

The “Constitution of India Bill, 1895,” drafted under the direction of Bal Gangadhar Tilak, represented the first overt demand for fundamental rights. This law, known as the “Swaraj Bill 1895,” addressed rights to free expression, privacy, and franchise, among other things. Several draughts were made after that a motion to develop an Indian “Swaraj Constitution” was approved during the Madras session of 1927. Inalienable basic rights were requested for the Indian people in the Motilal Nehru Report of 1928. The American Bill of Rights, which had a significant influence on Indian leaders’ thought, served as its primary inspiration. The Simon Commission disregarded the Nehru report.

On January 24, 1947, the Constituent Assembly established a basic rights advisory group, which was led by Sardar Vallabhbhai Patel. The rights of citizens, minorities, indigenous groups, and excluded territories were discussed by this advisory body.

In 1945, the Sapru Committee’s report was released. The Fundamental Rights “must” be incorporated in the Indian Constitution, according to this committee’s recommendation. This committee separated basic rights into two categories: those that can be justified and those that cannot. The rights that could be enforced in court were those that were justifiable. The Constitution’s Part III contains these legally binding rights. The incorporation of the non-justifiable rights served as a direction to the state to take all necessary steps to grant such rights

to people without any assurance. They were known as the Directive Principles of State Policy and were included in Part IV of the Constitution.

PARLIAMENTARY PRIVILEGES

In India, the origin of parliamentary privileges dates back to 1833. Following the passage of the Charter Act of 1833, the governor-general’s council gained a fourth member in 1833. A new kind of legislative apparatus was created. This served as the basis for an organisation that eventually evolved into a full-fledged legislative body. After the Indian Council Act of 1909 established indirect election to the legislature, the official opposition to the privileges of the legislature was lessened. The British Parliament passed the Indian Councils Act in 1909, which made certain reforms to the legislative councils and enhanced (limited) Indian participation in the administration of British India.

There are now some legislation and rules of procedure for the House, and some of the privileges of Parliament, its members, and committees are outlined in the Constitution. However, some privileges are still reliant on the precedents of the House of Commons. The Indian Constitution’s provisions on the rights and privileges of the Indian Parliament and its members were modelled after the system of rights and privileges enjoyed by the British Parliament. There is still a great deal of uncertainty over the scope of the legislature’s vague “powers, privileges, and immunities”[11]  because India’s legislation on privileges has not been codified. In most cases, it is thought that violating a privilege might be considered contempt of the house. Additionally, it is considered that while using its power of contempt, the legislature functions as a quasi-judicial body.

DIFFERENCE IN INDIAN AND BRITISH CONSTITUTION

India has chosen a written Constitution, in contrast to the British Constitution, which is unwritten and composed of usages and traditions that have accrued over the course of its long and eventful history. The origins of the Parliament’s privileges can be traced back to the fourteenth and fifteenth centuries, when lower courts were asserted to be incapable of hearing cases that questioned the legitimacy of decisions made by a higher court. At the time, Parliament was viewed as the highest court in the land and was thought to be a judicial body. Aside from the right to free expression, a number of additional privileges—rights that also had

court precedents—were also demanded, such as the immunity from civil arrest and the power to punish members and outsiders for contempt.[12] The basic right of a legislature or its member deemed required for the performance of constitutional duties may be referred to as a privilege[13]. According to Sir Erskine May, “Parliamentary Privileges is sum of peculiar rights enjoyed by each House collectively as a constituent part of High Court of Parliament, and by member of each House individually without which they can- not discharge their functions, and which exceed those possessed by other bodies and individuals.” [14]

Accordingly, privileges are unique rights that members of state legislatures and parliaments enjoy, not because of their lofty position but rather because these rights are thought to be absolutely necessary for enabling the members to fulfil their duties as the people’s elected representatives without fear of reprisal, favour, disturbance, or hindrance.

SCOPE

FUNDAMENTAL RIGHTS

The rights are referred to as “Fundamental Rights” and are protected by the Constitution. Every citizen’s entire physical, mental, and moral growth is guaranteed by these rights. They comprise those fundamental rights and conditions that, by themselves, may make life worthwhile. The country’s minorities benefit from a sense of security brought about by fundamental rights. They create the basis for the majority’s rule to have “democratic legitimacy.” Without fundamental rights like the freedom of speech and expression, no democracy can function. Standards of behaviour, justice and fair play are provided through fundamental rights. They serve as a watchdog on the executive branch. Fundamental Rights are significant because of various social, religious, economic, and political issues in our nation. The Fundamental Rights of our Constitution are listed in Part III, Articles 12 to 35. These rights are subject to the law.

The Indian Constitution recognized seven fundamental rights. However, the 44th Amendment Act of the Constitution, passed in 1976, removed the Right to Property from the list of Fundamental Rights. It has since been established as a legal right. Now there exist six fundamental rights.

FEATURES OF FUNDAMENTAL RIGHTS

In terms of how they are upheld, fundamental rights are distinct from normal legal rights. The aggrieved party cannot go straight to the SC without going through the lower courts if their legal rights are infringed. The subordinate courts are where he or she should start. The Fundamental rights are not absolute. They are subject to the conditions of public morality, decency, and cordial ties with other nations because they are subject to reasonable restrictions, which means they must adhere to state security requirements. All citizens have access to certain essential fundamental rights, but the remaining ones are available to everyone (citizens and foreigners). Because they serve as the foundation of the nation, fundamental rights are of utmost importance. They are crucial for defending the interests of the populace. All legislation that violates fundamental rights are invalid, according to Article 13. A specific judicial review clause is present in this situation.

PARLIAMENTARY PRIVILEGES

One of the most significant supports for achieving the objectives of national rebuilding and fostering the ideals of freedom, secularism, and democracy in India is the Parliament. The Indian government consists of the executive, judiciary, and legislative branches. It has continuously mirrored the sentiment, ambitions, and aspirations of the people as a representation of the country, as well as their weaknesses and disappointments. It is regarded as the most important political institution, the performance of which determines the prosperity of the country.

However, none of this is feasible unless its members give their best to fulfil the escalating demands of the teaming millions. In order to fulfil their duty free from interference from internal and external pressure, they need to be allowed to enjoy certain liberties and immunities, or what is known as parliamentary privileges.

“Privilege is a special right, benefit or advantage given to a person. In interpreting these privileges, therefore, regard must be had to the general principle that the privileges of Parliament are granted to members in order that “they may be able to perform their duties in Parliament ‘without let or hindrance”

The fundamental principle is that all citizens, including members of Parliament, must be treated equally in the eye of the law. Unless so specified in the Constitution or in any law, a member of Parliament cannot claim any privileges higher than those enjoyed by any ordinary (outside the parliament) citizen in the matter of the application of the law.

ARISING CONFLICTS    BETWEEN         PARLIAMENTARY PRIVILEGES & FUNDAMENTAL RIGHTS.

“Some of the peculiar rights enjoyed by each house collectively as a constituent part of the Parliament and by the members of each house individually without which they could not discharge their functions and which exceed those possessed by the other bodies or individuals” is how Sir T. May defines the term ‘parliamentary privilege.’ In other terms, parliamentary privileges are the rights and immunities that members of the Parliament may enjoy while serving in that role. The British Parliament is where the idea of parliamentary privileges originated.

“Articles 105 and 194 of the Indian Constitution confer privileges on the legislature. Article 105 addresses the privileges of the Parliament, while Article 194 addresses the privileges of the State Legislatures.”

ARISING CONFLICTS

According to parliamentary privileges, parliamentarians have the right to forbid the publication of the proceedings and reports from their individual sessions as well as the freedom of the press and speech. However, this parliamentary immunity is in violation of the rights mentioned in the past three of the constitution to freedom of speech and expression, which states that one is entitled to the right to freely express one’s convictions and opinions through words of mouth, writing, printing, pictures, or any other mode.

In contrast to the basic right of Article 19(2), which is said to as an absolute individual right with reasonable restrictions, parliamentary privileges are referred to as autonomous rights with no reasonable limitations.

The right to free speech in Parliament is expressly protected under Article 105(1). There shall be “freedom of speech in Parliament,” it states. No Member of Parliament shall be subject to any proceedings in any court with respect to anything said or any vote cast by him in the Parliament or any committee thereof, according to clause (2). Therefore, a member will not be subject to civil or criminal action for libel or similar offences based on statements made in the House of Commons or one of its committees. The protection extends to votes as well as only spoken remarks, as stated explicitly in clause (2), namely “any vote delivered by him in

Parliament or any committee thereof.” Though not officially mentioned, freedom of speech would extend to additional acts performed in connection with the activities of each House, such as notifications of motions, questions, committee reports, or resolutions.

The freedom of expression granted by clause (1) differs from that guaranteed to citizens as a fundamental right under Article 19. (1) (a). As a fundamental right, freedom of expression does not completely shield an individual for what he says. Clause (2) of Article 19 limits the right to reasonable restrictions. The word “freedom of speech” as used in this article indicates that In any court of the country no Member of Parliament shall be accountable for speeches and statements made during debates and discussions in Parliament or any committee thereof. As a result, the freedom of expression granted by this article, no restriction is applicable mentioned under article 19(2).” According to these conflicts, the issue of which of the two will take precedence in the event that fundamental rights and parliamentary privileges conflict arises in law and judicial interpretation. A few questions that come up in the midst of the struggle between the two are:

Which one will take precedence in the event that there is a dispute between parliamentary privileges and fundamental rights?

If parliamentary privileges interfere with fundamental rights, may they be abolished? Do Judiciary have the authority to employ their judicial authority in cases involving parliamentary privileges?

Would Fundamental Rights override the privileges and would privileges be subject and subservient to Fundamental Rights?

THE JUDICIAL APPROACH TO PARLIAMENTARY PRIVILEGE AND FUNDAMENTAL RIGHTS

The Constitution has given the judiciary the dual responsibilities of drafting the Constitution’s provisions and defending people’ Fundamental Rights. The Constitution’s inherent rights for Parliament and its members include a significant portion of their privileges and immunities, which are intended to help them fulfil their roles as the people’s representatives. However, they are only intended for that objective. They are all citizens first and lawmakers second, and if they start to assault the fundamental human rights of citizens out of self-interest, that is nothing less than totalitarianism. The foundation of our constitutional order is the building of a welfare society that upholds both the dignity of the person and the honour of the country. To realise all

these noble principles to which the nation is committed, all State organs must cooperate and work in unison.

• In the case of GK Reddy v. Union of India[15], A writ case was submitted to the Apex Court of India under Article 32 of the Constitution of India asking that GK Reddy, the editor of Blitz magazine, be accused of violating a privilege and be booked in illegal imprisonment. Appeal stated that, he was arrested by the UP Police after being caught in Bombay and had to appear before the Uttar Pradesh Speaker to defend himself against a charge of breach of privilege. The journalist was unlawfully detained in the care of the Speaker of the Legislative Assembly of Uttar Pradesh and was not even brought before the magistrate within 24 hours. “The Supreme Court gave a ruling that an unlawful arrest occurred, when the arrested person was not produced before the magistrate within 24 hours, infringing his right of preventive detention provided by Indian Constitution.”
• In another case of “K. Anandan Nambiar v. Chief secretary Government of Madras[16], the petitioners in this case were arrested under the 1962 Defense of India Rules and were members of the Parliament. A legislature cannot be imprisoned to restrict him from doing his constitutional duties as a legislature when the legislative chamber to which he belonged was in session,  according  to  the  petitioners  who  challenged  the  detention  order.” The Apex Court ruled that if someone was being held legally, they could not claim parliamentary privilege or special treatment above and above that of an ordinary citizen and were subject to being arrested and subject to the same laws as other citizens. The exercise of a member’s right to free expression would not be permitted if a legitimate order of detention prohibits him from attending a session of Parliament.

PROVISIONAL IDENTIFICATION OF PARLIAMENTARY PRIVILEGES

“Parliamentary privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law.”[17] India has adopted a number of conventions and precedents from various constitutional systems of the country, one of them being the British constitutional system and thus its effect upon the provisions of the Indian Constitution is most apparent with respect to Parliamentary Privileges. As a result of the acceptance of the House of Commons as the paradigm for the legislature, Articles 105 and 194 of the Draft’s Constitution were incorporated in the House’s privileges. It can be deduced from the Constituent Assembly Debates that listing all the prerogatives and authority of the Parliament would have increased the size of the Constitution and that adopting the prerogatives and powers of the subsisting legislature as per the Government of India Act, 1935 which was poorly advised because it merely had few rights in its hands. Through Articles 105 & 194, the Indian Constitution espoused for Parliament and the state Legislature respectively, similar rights, prerogatives, and resilience as were bestowed at the beginning of the Constitution in the House of Commons of the British Parliament, until they were “prescribed by law.” The acceptance of the rights and privileges of the House of Commons was a stopgap measure, following the practise that had been taken in other Dominions to achieve complete freedom of expression and complete legislative omnipotence.[18]

Certain entitlements are clearly stated as under the Constitution, while some are left to the legislative assembly and the parliament. This part of the research addresses the privileges that are unequivocally defined within clauses 1 & 2 of Articles 105 and 194 of the Indian Constitution.

ART. 105 READS AS UNDER

“(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament

• No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person

shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes, or proceedings;

• In other respects, the powers, privileges, and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978;
• The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”[19]

ART. 194 READS AS UNDER

“(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State;

• No member of the Legislature of a State shall be liable to any proceedings in 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 a House of such a Legislature of any report, paper, votes, or proceedings;
• In other respects, the powers, privileges, and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution forty fourth Amendment Act, 1978;
• The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.”[20]

The purpose of clause 1 of Art. 105 & 194 is to grant the legislators, freedom of speech, autonomous of and unaffected by anything in Article 19(1) (a). This legislative flexibility is, however, subject to two restrictions; Such aspects of the Constitution which pertain to the procedure of the legislature as under Articles 208 and 211. Consequently, a member cannot use his right to free speech to critique the conduct of the judge of the Supreme Court or High Court[21] unless a motion for his dismissal is under contemplation. However, the question of a member violating Article 121 in the course of oration in the House falls under the purview of the House’s presiding officer and not the Court.[22] Also, the anti-defection provisions of 10th Schedule Para. 2 do not violate Article 105(1) and 194 (1).[23] Clause 2 goes a step beyond Clause 1 with regard to a legislative’s legal culpability for anything said in the legislature. Even if his speech infringes the basic right of another person under Article 19(1)(a) and even if he breaches any other provision of the constitution, he will be totally exempt from any legal prosecution, albeit he may be accountable to the House and the Speaker may take appropriate measures. The term ‘procedure’ refers to any proceeding, including civil, criminal, and writ proceedings. This immunity is absolute and based on the idea that it is fundamental to the Parliamentary system of government that representatives of the people are free to express themselves without fear of legal repercussions. On the 295, Articles 105(3) & 194(3), In an effort to impart the widest range of privileges enjoyed by the House of Commons, these federal statutes do not exhaustively list the advantages; rather, they identify only a few privileges and equate the position of a House to that of the House of Commons for the remainder. Until Parliament or the State Legislature, as the case may be, passes a legislation specifying the powers, privileges, and immunities of the House, its members, and Committees, they shall have all the rights, privileges, and immunities of the House of Commons as of the date of our Constitution’s enactment. The ultimate goal was for privileges to be defined by legislation passed by the legislature. The powers, privileges, and immunities of the House of Legislation are listed in entry 39 of List II of the Seventh Schedule of the Constitution, much as Parliament’s are listed in entry 74 of List I of the same schedule. However, no legislation has been enacted to date.

DIFFICULTY  IN    CARVING        OUT THE         BALANCE BETWEEN THE TWO.

The Constitution of the country has allocated the dual responsibility of protecting the citizens’ fundamental rights along with establishing the constitutional provisions, to the judiciary. The prerogatives and entitlements of Parliament and its members are an integral component of their inherent rights under the Constitution and are intended to assist them in carrying out their duties as representatives of the people. They are nonetheless intended solely for that function.[24] They are all citizens first and lawmakers second, and once they begin to undermine the fundamental human rights of people in their own self-interest, it is nothing short of authoritarianism. The foundation of Indian Constitutional System is the construction of an equitable social structure and the formation of a Welfare Society that preserves the pride and dignity of the person and the nation. To achieve these noble ideals, to which the nation is devoted, all State organs must operate in concert and cooperation. The judiciary in our country holds the power to strike down any such rule that is a breach to fundamental rights of any citizen. In Pandit MSM Sharma v.

S.K. Sinha[25], the Supreme Court decided that the authority of Judicial Review under Article 13 (2) would not extend to rights IN Clauses 1 and 2, since the meaning of these clauses barred Judicial Review. Regarding Clause 3, the Supreme Court held that the uncodified rights were not a legally embedded rule within the meaning of Article 13(2) and hence could not be struck down.

While Article 105(3) provides for a strong necessity to provisionally identify the rights, Parliament, following the Supreme Court’s reasoning, has decided to leave out the privileges uncodified out of fear that if privileges are to be codified in the form of a statute, they would be invalidated in the event of a conflict with Fundamental Rights. Several privileges are most likely to conflict with Fundamental Rights; if codified into law, these privileges will almost certainly be invalidated. Consequently, members continue to enjoy a huge number of privileges that are in conflict with Fundamental Rights in practise and that have lost their status as privileges in England and other nations. There is considerable controversy around the method to be followed in cases of breach of privilege.

Parliament has not yet established a fixed procedure for handling privilege violations. The Indian Parliament continues to maintain a policy of varied process for each case of breach of

privilege that is brought before it, based purely on the needs of the moment and general public opinion in each case. Due to its restricted reading of Article 122 of the Constitution, the Supreme Court had previously refused to intervene in such an unfair procedure. Even if a parliamentary procedure threatened the life and liberty of a citizen under Article 21, the Court carefully avoided reviewing parliamentary procedures.

The Court in the case of P.V. Narsimha Rao vs State[26] also popularly known as JMM Bribery Case, held that Article 105(1) freedom of speech for members of Parliament is broader than Article 19(l)(a) freedom of speech and expression because article 105(1) freedom of speech is not subject to restrictions. Consisting of Article 19(2). In a case it was quoted that “Parliament is incapable of punishing a member for any offence.”[27] In the JMM bribery Case it was contended that the prerogative of Article 105 (2)’s privilege of immunity from legal proceedings pertains to even the bribes accepted by Parliamentarians for the purpose of their vote in Parliament. Consequently, the bribe-taking MPs who voted against the no-confidence resolution in parliament were afforded protection under Article 105(2) and were not liable in court for claimed conspiracy and agreement. However, the court determined that the bribe-taking member of parliament, who did not vote on the motion of no confidence, had no Article 105 defence rights (2). Further in the case of Raja Ram Pal vs. The Hon’ble Speaker, Lok Sabha[28] the Court did unequivocally enumerate that privileges may well be susceptible to Fundamental Rights on a circumstantial basis; The majority found that it was “impossible to conceive of any reason why the general concept that basic rights cannot be used in situations involving Parliamentary privileges could be recognised.” However, the Court also explicitly reserved the authority to scrutinise parliamentary processes for itself.

The court however, in recent judgements has been acceptable to the hindrance of such prerogatives upon the fundamental rights. In the most recent judgement of State of Kerala vs. K Ajith[29], the Supreme Court of India has ruled that Article 194 of the Indian Constitution does not grant protection to members of the legislative assembly (MLAs) who are being prosecuted for suspected criminal activities committed in the assembly. In these recent cases,

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.”[30]

Therefore, it can be witnessed that the judiciary has been trying to carve out a balance between the two since years, however, there is no such pronouncement that has been successful in doing so.

CONCLUSION

SUGGESTIONS

• The Supreme Court’s understanding that freedom of expression is subject to legislative privileges is out of step with contemporary conceptions of human rights, and there is an urgent need for a new look at the thorny issue of press freedom in relation to parliamentary privileges.
• There is an urgent need to re examine the balance between the parliamentary privileges and fundamental rights. There appears to be great difficulty in doing so and coping mechanisms must be brought up according to the interpretations of the Court wherein neither the necessity of such privileges is sacrificed nor the fundamental rights enshrined under the constitution of India.
• Codification of the Parliamentary Privileges would submit them to Fundamental Rights and judicial inspection, so eliminating the apparent element of arbitrariness in the privileges and preventing the evolution of privileges based on the whims and fancies of lawmakers.

CONCLUSION

In our country, Parliament plays no judicial role, and their historical and constitutional history in no way supports their claim to be regarded as record courts. Thus, no exemptions can be claimed from the courts’ scrutiny of Houses of India general warrants. Before enacting any legislation, both the parliament and the state legislatures are responsible for ensuring that it does not violate any rights. Representatives are also obligated to exercise these privileges correctly and refrain from abusing them for purposes that are not in the best interests of the country and the general public. The reality that “money corrupts and absolute power corrupts totally” must be kept in mind. Under the granted privileges, the public and the other governing body will always be on guard to ensure that this does not occur.

The research article strived to study whether there can be a balance carved out between Parliamentary Privileges and Fundamental Rights, along with assessing the disparities between the rights given to public at large and to their representatives in the name of privileges. The research also aimed to analyse the relationship between Parliamentary Privileges and Fundamental Rights along with the spheres where there needs to be a necessary distinction made between Parliamentary Privileges and Fundamental Rights. After the research the researchers have concluded that carving out a balance between the two is a difficult task altogether and there do exist disparities between the rights given to public at large and to their representatives. The relationship between parliamentary privileges and fundamental rights is exhaustive and they are mutually exclusive of each other although being prerogatives respectively to their aimed population. Therefore, it can be clearly assessed from the analysis of the research that “parliamentary privileges and fundamental rights are mutually exclusive however there still are many inflicting problems between the two.”

[1] Ijas Muhammed, Parliamentary Privileges and fundamental rights: Conflicts, Vol. 8, Legal Desire International Journal on Law, Pg. 143-151, Feb 2021.

[2] Sir Thomas Erskine May, Parliamentary Practice, Chapter- III, Pg. 42, Edition- 16^th, 1957

[3] Dr Baljit Kaushik, Parliamentary Privileges in India: An Overview, Vol. 2, Asian Journal of Multidimensional Research (AJMR), Pg. 56-62, 2013.

[4] Raja Ram Pal v. Hon’ble Speaker Lok Sabha, (2007) 3 SCC 184.

[5] Dr. JN Pandey, Constitutional Law of India, Central Law Agency, 58^th Edition, 2022.

[6] M Laxmikanth, Indian Polity, 6^th Edition, McGraw Hill Education India, November 12, 2021.

[7] Sir Thomas Erskine May, Parliamentary Practice, Edition- 16th, 1957.

[8] Raj H., Evolution of Parliamentary Privileges in India, The Indian Journal of Political Science, Vol- 41, 1980.

[9] Ijas Muhammed, Parliamentary Privileges and fundamental rights, Conflicts, Vol. 8, Legal Desire International Journal on Law, Feb 2021.

[10] Dr Baljit Kaushik, Parliamentary Privileges in India: An Overview, Vol. 2, Asian Journal of Multidimensional Research (AJMR), 2013.

[11] Bedi, S., The Power to punish for Contempt under Parliamentary Privileges: An analysis of the inherent limitations, Vol- 51, Journal of the Indian Law Institute, Pg. 79 to 91.

[12]  C. Wittke, The History of English Parliamentary Privilege: The privilege against arrest was first codified in a statute of Henry IV, which provided that members of Parliament and their servants were immune from arrest during session and shortly before and after, 1921.

[13]  Raj, H, Evolution of Parliamentary Privileges in India, Vol- 41, The Indian Journal of Political Science, Pg. 295 to 398, 1980.

[14]  TREATISE ON LAW, PRIVILEGES, PROCEEDINGS & USAGES IN PARLIAMENT, London, Pg. 64,

[15]  AIR 1954 SC 636

[16]  1966 AIR 657

[17]  Raja Ram Pal v. Hon’ble Speaker Lok Sabha, (2007) 3 SCC 184

[18]  ibid

[19]  The Constitution of India, Art. 105, 1950.

[20]  The Constitution of India, Art. 194, 1950.

[21]  Sharma v. Sri Krishna, AIR 1959 SC 395.

[22]  A.K. Subbiah v. Karnataka, Legislative Council, AIR 1998 SC 2120

[23]  Kihoto v. Zachilhu AIR 1993 SC 412

[24]  Lal, A. B. The Indian Parliament, Page 66.

[25]  AIR 1959 SC 395

[26]  AIR 1998 SC 2120

[27]  State of Karnataka v. Union of India, (1977) 4 SCC 608

[28]  AIR 2007 SC 1448

[29]  SLP (Crl) No 4009 of 2021

[30]  Baglekar Akash Kumar, Time to define Parliamentary Privileges, Bar & Bench, 23 Sep, 2021, 9:27 A.M. https://www.barandbench.com/columns/time-to-define-parliamentary-privilege