There is a very minute line of gap between the powers and privileges yet it doubtlessly can make an incredible difference. Parliamentary privileges in simple language can be described as a special advantage given to the parliamentarians due to the position they hold in the system. These privileges are guaranteed to them by the Indian Constitution under Article 105 and 122.The main purpose of our constitution makers behind giving these privileges to the parliamentarians was to allow them to carry on their services with full efficiency and without any fear. However, this has to be kept in mind that these privileges are enjoyed by the parliamentarians only when the assembly proceedings are in session and not otherwise.
Any person who is said to have breached or violated these privileges commits an offence. In the standard form, whoever commits an offence is punished by the Judiciary because of that being its main function. But the parliament does not have recourse to the court for exercising its penal powers and can punish people who breach the privileges given to them on its own. The privileges in our country have not been codified yet and we have been blindly following the House of Commons in England for defining those. It is considerable to notice that in England unlike India, Parliament is sovereign and no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. There are no limits over the authority of the British parliament, their constitution has given no regulations or restrictions to them, pertaining to this reason De Lolme made a remark that ‘British parliament can do everything but make a woman a man and a man a woman’.
It is an established fact that parliament and its members need certain privileges to maintain the independence of action and the dignity of their functioning. But in any case, even to secure these benefits given to them, they are given too much power. Judiciary is considered as the central pillar of democracy, with parliament having penal powers it is somehow interfering with the primary role of judiciary. Although disagreements and disputes have arose between Judiciary and Legislature through the course of the time but the Keshav Singh’s case, has been the paragon of this conflict where the assembly issued a warrant against two high court judges for giving bail to a person who was punished by the parliament. Although the Apex Court quashed the warrant, this action of the parliament will be a forever remembered event in the history.
Freedom of speech has been guaranteed to our citizens as a fundamental right. But the parliament has another freedom of speech mentioned under Article 105. The question arises, as there is already a right to speech in our constitution, then why do we need such law? The reason behind this is that the right mentioned in Article 19(1) (a) is subjected to reasonable restrictions unlike Article 105. It was said by the Apex court in the case of Tej Kiran Jain & Ors v. N. Sanjiva Reddy & Ors that Art. 105(3) confer immunity, inter alia, in respect of anything said in Parliament. The word ‘anything’ is of the widest import and is equivalent to ‘everything’. It clearly means that a parliamentarian, during the proceedings does not have any restriction over whatever he says and can never be punished for that.
In India, freedom of press is highly emphasized and taken care of. This freedom is considered as a fundamental right which holds the highest value in our constitution. But the decision of the Apex Court in the Searchlight case, has been proved as a major hindrance to that. It was observed that parliamentary privilege being a special provision has an upper hand in comparison to the fundamental right of freedom of speech and expression which is an ordinary provision. In this case the Supreme Court also held that if the parliament ever codifies the Privilege law, then being an ordinary provision it will not override the fundamental rights. Due to this fear maybe, the parliament till date has not codified the said law.
This has lowered down the freedom given to the press against the parliament. One example is when Editor A.M. Paulraj published an article against the legislature stating them as “Rowdies in Assembly” the legislature sentenced him for two weeks jail. Correspondingly when he filed petition in High Court and the Supreme Court, both were dismissed. This law also gives parliament the power to withdraw press cards from the journalists if found guilty of any default. The parliament has indeed done this before in the famous blitz case.
The most important feature of our country’s representative democracy is that every person who lives within the territory of India is equal before the law. This notable feature of our democracy suffers from a major setback as the members of parliament have much more protection and can be essentially called as super citizens of the country.
The power to punish as major as it is, should be exercised with due diligence and with proper care. One interesting thing to be noticed is that even after all these powers, we should adopt the attitude the British parliament has adopted through time. Since late 18th century no attempt has been made by the House of Commons to punish an outsider for its contempt but in India there has been numerous cases since independence and they are still going on now. A very recent one is when the Tamil Nadu legislative assembly issued arrest warrants against the senior journalists of newspaper The Hindu for criticizing them in a bold manner. By this erroneous power, house even labels contempt on people for genuine criticism.
The need of the hour now is to codify the privilege law which we are blindly aping from the British Constitution. The constitution makers have put so much of their heart and sweat for making it best for our people for which they have borrowed the best out of every constitution in the world. They have also set off some gaps to be filled by the forthcoming parliaments like these privileges which give some extraneous powers to the parliament, were left to be determined in future by the them. It is now high time for the legislature which is responsible for making laws for the people of our country to make a law for themselves.
 DICEY, THE LAW OF THE CONSTITUTION (8th ed.1885).
 Jean-Louis de Lolme, Constitution de l’Angleterre, 1771
 Keshav Singh v. Speaker, legislative assembly, AIR 1965 All 349
 Tej Kiran Jain & Ors v. N. Sanjiva Reddy & Ors, A.I.R. 1970 S.C. 1573
 MSM Sharma vs. Sri Krishna Sinha, AIR 1959 SC 363
 Homi D. Mistry vs Shree Nafisul Hussan, (1958) 60 BOMLR 279
Author Details: Aditya Sharma (Institute of law, Nirma University)
The views of the author are personal only. (if any)