This article is written by Divyanjali Mishra of 3rd Semester of Maharashtra National Law University, an intern under Legal Vidhiya
ABSTRACT
Parliamentary sovereignty, also called legislative supremacy, is a concept that is followed in various countries like the United Kingdom, Great Britain, etc. In India, though its parliamentary system is similar to that of the British Constitutional supremacy is followed in place of parliamentary supremacy. This helps in protecting the rights of people. This concept of parliamentary sovereignty is discussed further in this article. Parliamentary privileges are special immunities granted to the members of the parliament, protecting them from liabilities that would have arisen in the normal course of working. These members are protected from such liabilities during parliamentary proceedings. The idea behind providing such immunity is to save the dignity, authority, and honor of the members of the parliament. The various constituents of parliamentary privileges are also discussed in this article. A description of various such privileges is also given. The relevant articles in the Indian constitution and landmark cases dealing with these privileges are also discussed at length.
Keywords
Parliamentary sovereignty, parliamentary privileges, immunity, Indian Constitution.
INTRODUCTION
India’s Parliamentary sovereignty and privileges are fundamental to its democratic framework. The concept of parliamentary sovereignty in India implies that Parliament has the supreme authority to make laws within the boundaries set by the Constitution. This principle allows Parliament to enact, amend, or repeal any laws. Privileges granted to Parliament and its members are to ensure the proper functioning and independence of the legislative body. These privileges include freedom of speech within the Parliament, the right to regulate its proceedings, immunity from legal action for speeches or debates within the Parliament, etc.
However, there have been instances where these privileges have been a subject of debate or legal challenges. One significant case if the Keshavananda Bharati vs. State of Kerala (1973) case, where the Supreme Court of India upheld the doctrine of basic structure, stating that although Parliament has the authority to amend the Constitution, it cannot alter its basic structure. Understanding these parliamentary privileges and sovereignty thus becomes important for further evaluations.
PARLIAMENTARY PRIVILEGES
The idea of parliamentary privileges is borrowed from the British constitution. In India, this idea originated from the charter brought back in 1833, when a fourth member was added to the governor-general’s council. This system laid the foundation of an institution that later grew into a full-fledged law-making body. Powers, privileges, and immunities of Parliament and its members are given under Article 105 of the Indian Constitution. It is the privilege that is granted to the members of the parliament which protects them from any court proceedings, it is a legal immunity enjoyed by certain legislatures[1]. These privileges save them against any kind of civil or criminal liability for statements made or actions done during the parliamentary proceedings.
WHAT ARE PARLIAMENTARY SOVEREIGNTY AND PRIVILEGES
Parliamentary privileges are the special rights that a person holds because of him being a member of the parliament. These are the advantages that are granted to the members of legislatures. The main objective behind offering these rights is to enable them to function efficiently. It is contained in chapter 2 of the Indian constitution from Articles 79 to 122. There are some privileges of parliament and its members that are specified in the constitution. The main articles dealing with it are Article 105 and Article 122 and for States the privileges are mentioned under Articles 194 and 212 of the Indian Constitution.
WHAT IS THE NEED OF SUCH PRIVILEGES
These privileges help maintain the dignity, sanctity, authority, and honor of the members of the parliament. These privileges are like the walls that save the house from any kind of obstruction in discharging their duties. These parliamentary privileges serve several important purposes such as granting freedom of speech which is crucial for the robust and uninhibited exchange of ideas and opinions on important issues, and this freedom serves as a tool for promoting honest opinions in debates, these privileges also help in protecting the legislature from interference from other branches thus protecting its independence from undue influence from executive, judiciary or any other external authority, the right to punish individuals for contempt of Parliament allows the legislature to protect itself from actions that may undermine its authority or interfere with its functioning, and the power to regulate its procedures and maintain order within the legislative chambers is crucial for the efficient conduct of parliamentary business.
All these powers and rights protect the overall sanctity and independence of the legislature. These privileges are essential for the functioning of the legislative body, enabling its members to effectively represent their constituents, deliberate on issues, and hold the government accountable without fear of external repercussions.
The court in one of the cases[2] explained that in the matters of privileges stated under Article 194(3), the house will be considered as the sole judge but if any such privilege is not mentioned then it’s the court who has to decide upon it.
CATEGORIES OF INDIAN PARLIAMENTARY PRIVILEGES
There are two types of privileges granted to the parliament: Collective Privileges and Individual Privileges[3], both of these are discussed below at length.
The Privileges enjoyed by Members in Individual capacity
1.1 Immunity from Arrest
The members of the parliament cannot be arrested during its session and 40 days before and after the session. No member can be arrested from the limits of the parliament without permission from the house. This immunity is granted so that the proceedings of the house take place without any hindrance. The chairman or the speaker of the house has to be informed about the detention of the member of parliament, if done, along with the reason for detention. Outside the premises of the parliament, a member can be arrested under The Preventive Detention Act, The National Security Act, etc.
1.2 Freedom of speech
Members have freedom of speech in the houses, they are not liable for any court proceedings for the speech given by them in the parliament. The main essence of the parliamentary democracy is free speech and to protect it, this privilege has been given to members. This freedom of speech is granted under Article 105(1) of the Indian Constitution and it is different from what is granted under Article 19(2)[4]. However, this freedom is also subject to certain rules and regulations stated under Article 118[5]. This right is given to all those who have the right to speak in the house. However, members of the parliament refrained from discussing the conduct of the judges of the Supreme Court and High Court under Article 121[6].
The Collective Privileges
2.1 Right related to the publication of proceedings
The reports, debates, and proceedings can be published or denied to be published by the Indian parliament. However as mentioned under Article 105(2)[7], true reports of the parliamentary proceedings can be published and also if it is important to convey such news to the general public, then publication of such news can be made. However, all the news related to the house’s secrets is completely immune from publication.
2.2 Right to exclude strangers
Indian parliament can exclude strangers from its proceedings. This is done to maintain the sanctity of the parliament. If something is done in breach of this, then the person doing it will be held liable, and requisite punishment will be given to him/her.
2.3 Right to make rules of the proceedings
The two houses can make rules related to the regulation, conduct, and adjudication of their work. Although no house can interfere in each other’s conduct and jurisdiction. The Supreme Court also held that the house can deviate from or change the proceedings of the house at times. The same cannot be challenged in a court of law.
2.4 Right to punish members and outsiders
The Indian Parliament can punish members or outsiders for breach of its privileges. Parliament can suspend or expel members in case of breach of privileges. If such a breach is made by a member, he/she can be expelled from the house. This right has been defined as a ‘keystone of parliamentary privilege’, this is so because, in the absence of such right, the house would suffer from contempt and breach. It becomes crucial to safeguard its authority.
The parliament can punish the outsiders or the members for any breach of privilege through reprimand, or admonition or imprisonment.
2.5 Right to Information
The parliament can get information about any minister’s arrest, conviction, detention, imprisonment, and release. The court has to provide such information to the house if asked for the same and has to state the reason why the particular member has been arrested.
PARLIAMENTARY SOVEREIGNTY
Every country requires a basic framework for maintaining law and order. In some countries, like India, the constitution is considered the supreme body. It provides the rules and laws of the land and defines the limits of the various organs governing the country. India consists of three organs of the government, Legislative, which is the law-making body, executive, which executes the law and judiciary. The work of the judiciary is to review every law made by the parliament and to check whether it is consistent with the constitution of India, this is known as judicial review. The law, if inconsistent, can be declared void. However, such a system is not followed in various countries including the United Kingdom, Great Britain or England for example. In these countries, there is no system of judicial review. The legislative has supreme power, this is known as parliamentary sovereignty.
The concept of parliamentary sovereignty also called legislative supremacy is a concept that is followed in some parliamentary democracies. According to it, parliament is the sovereign body and is above all other government institutions, including the executive or judiciary. The legislative may change, or repeal any previous legislation and is not bound by any written law or precedent[8].
SOVEREIGNTY
The word sovereign has been derived from the French word “souverain” meaning “supreme”. According to DICEY, political sovereignty resides with the people and legal sovereignty resides with the parliament[9].
Parliamentary sovereignty is questioned on the basis that if the laws made by the parliament are violative of natural justice and equity such laws must be declared as invalid[10]. But if there is parliamentary supremacy then there is no option of reviewing these laws[11].
INDIA AND PARLIAMENTARY SOVEREIGNTY
In India, the Constitution governs the supremacy of parliament. All the rules and laws made by the parliament are reviewed by the judiciary, i.e., judicial review is done as mentioned in the Indian Constitution under various Articles[12]. Indian legislature enjoys powers but with checks and balances. Indian parliament is similar to British parliament but judicial review makes it different from the British parliamentary system. Various factors limit the sovereignty of the Indian parliament such as, The Indian Constitution which is a written document and provides many rules and restrictions that the parliament has to follow while making laws, and the federal system of government which was also discussed in one of the landmark cases and in that it was also stated that the parliament’s power is limited by the principle of federalism[13], judicial review as mentioned earlier, parliament cannot make any laws which are inconsistent with the fundamental rights mentioned under the Indian Constitution[14] and limits imposed by the veto power conferred to the President of India by the Constitution.
All these factors restrict parliamentary supremacy thus protecting the greater interest of the citizens and protecting them from atrocities that could arise from the laws, if, made inconsistent with their fundamental rights.
CASE LAWS DEALING WITH PARLIAMENTARY PRIVILEGES AND SOVEREIGNTY
Keshavananda Bharati vs. State of Kerala (1973)
The Supreme court in this case held that Parliament’s power to amend the Constitution is not absolute and cannot alter its basic structure.
Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha (2007)
In this case, the Supreme Court ruled that the Speaker’s decision disqualifying members of Parliament cannot be immune from judicial review, thereby asserting the court’s authority to intervene in parliamentary affairs.
P.V. Narasimha Rao vs. State (CBI/SPE), New Delhi (1998)
This case explained the scope of parliamentary privileges. The Supreme Court held that no person, including Members of Parliament (MPs), can claim immunity from facing a criminal trial for corruption or criminal activities by invoking parliamentary privileges.
CONCLUSION
In conclusion, parliamentary sovereignty and privileges are integral components of the functioning of a democratic legislature. It allows the parliament to enact, amend, or repeal laws without being bound by a higher authority, such as a written constitution or judicial review.
Parliamentary privileges, on the other hand, are the rights and immunities granted to members of parliament to facilitate their duties and ensure the independence of the legislative process. These privileges, including freedom of speech, immunity from legal actions for statements made in the parliament, and protection from arrest during sessions, are crucial for fostering open debate, safeguarding the independence of lawmakers, and maintaining the effective functioning of the legislature.
However, it is important to recognize that these principles are not absolute. There are limitations and restrictions on parliamentary privileges to prevent abuse and ensure accountability. Constitutional constraints, legal oversight, ethical standards, and considerations of national security and public interest all contribute to shaping the boundaries of parliamentary sovereignty and privileges.
In a well-balanced democratic system, parliamentary sovereignty and privileges work in tandem to create an environment where legislators can effectively represent their constituents, engage in robust debates, and make informed decisions while being held accountable to the rule of law and ethical standards. Striking this delicate balance is essential for upholding the principles of democracy, transparency, and the protection of individual rights within the parliamentary framework.
[1] Dalip Singh, Parliamentary Privileges in India, JSTOR (Last visited Nov. 22, 2023, 13:40 PM) https://www.jstor.org/stable/41854062?seq=1.
[2] Keshava Singh v. Speaker, Legislative Assembly AIR 1965 All 349.
[3] Byjus Editor, Indian Parliamentary Privileges, Byjus (visited Nov.10, 2023, 11:25 AM) https://byjus.com/free-ias-prep/parliamentary-priviliges-and-immunities/.
[4] Constitution of India, 1950.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Mr. David Blunt, Parliamentary Sovereignty and Parliamentary Privilege, NSW Parliament ( last visited Nov. 22, 2023, 13:42 PM) https://www.parliament.nsw.gov.au/lc/articles/Documents/parliamentary-sovereignty-and-parliamentary-priv/Parliamentary%20Sovereignty%20and%20Parliamentary%20Privilege.pdf.
[9] Kavya Lakshmi, Parliamentary Sovereignty, LEGALVIDHYA (last visited Nov. 10, 2023, 10:18 AM) https://legalvidhiya.com/parliamentary-sovereignty/.
[10] Day v. Savadge (1614) Hob 85.
[11] Parliamentary Sovereignty Lecture, LAWTEACHER (last visited Nov. 10, 2023, 10:30 AM) https://www.lawteacher.net/lectures/public-law/parliamentary-sovereignty/?vref=1.
[12] Article 13,32,131 through 136,143,226 and 246.
[13] S.R. Bommai v. Union of India (1994) 2 SCR 644.
[14] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
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