history of parliamentary privileges

 

Historical Evolution of Parliamentary Privileges

                                                                

 

      

 

 

                                                                                                                   

                                                                                     Put Forwarded By:

                                                                                     Jaya Godhwani

                                                                                      BSc. LLB-2ND year

                                                                                       Roll number-884003

 

 

 

 

Introduction

A ‘privilege’ means a special or exceptional right or an immunity enjoyed by a particular class of persons or individuals which is not available to the rest of the people. In its legal sense it means an exemption from some duty, burden, attendance or liability to which others are subject. Parliamentary parlance the term ‘privilege’ means certain rights and immunities enjoyed by each house of parliament and its committees collectively, and by the members of each house individually without which they cannot discharge their functions efficiently and effectively. The privileges are available to members only when they are functioning in their capacity as members of parliament and performing their parliamentary duties. Without the privileges the members would be handicapped in performing their parliamentary duties and the authority of parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens, would be correspondingly diminished.[1] The privileges of each house gave both external and internal aspects: they protect it against outside interference that would erode freedom to conduct its own proceeding; and they impose duties on its members, restraining them from conduct that would abuse their privileged position.

On the other hand the fact that the house, and its individual members, claim certain privileges not available to the ordinary citizen, and may seek to punish those who infringe them, tends to set the house apart from the people it represents and make it liable to criticism- and even ridicule- if it appears to be asserting privileges which are not obviously essential for its functions.

The reconciliation of these two claims- the need to maintain parliamentary privileges and the desirability of not abusing them-has been the hallmark of the House of Commons’ treatment of privilege issues in recent years.

Historical background of parliamentary privileges:

The origin of parliamentary privileges is inextricably intertwined with the specific history of the institution of parliament in England. The executive branch of government was separated from the parliament and the House of Commons were struggling to establish place for itself in the parliament which was necessary to protect them from the inference and power of the king and the house of lord. Thus the privileges were established in late 16th century. What originated from the special protection of the king was being claimed by the commons on the basis of theory of inheritance and divine right of the king. Thus when the stable condition was reached in 19th century with the limits of privileges being prescribed and accepted by the parliament.

May describes the historical development of privileges as follows:

·         By the latter of 15th century, the house of commons seems to enjoy the undefined right to freedom of speech as a matter of tradition rather than by virtue of privileges sought and obtained. Earlier the speaker did not make such claim. What they did request, was permission to correct any advertent misrepresentation of the house to the king. Even the speaker asked if the House of Commons or speaker displeases the king or infringe the prerogative it should be regarded as unintentional. By the first parliament of Elizabeth in 1563, the freedom of speech was in debate and it was justified according to the tradition of ancient time. In 1629, sir john Eliot with other two members was imprisoned and found guilty by King’s Bench of seditious word spoken in debate and violence against the speaker. The common bench declared the court of king should not have accepted the jurisdiction of Eliot case and others. And the judgment was illegal and against the parliament privileges. The common reversed the judgment and the privileges received the statutory recognisation after the revolution of 1688 by article nine of bill of rights.

·         Although the privilege of freedom of speech protect what is in debate in the either houses. This privilege doesn’t to the same degree apply to the privilege of publication of debate or proceeding outside the parliament.

Publication, whether by order of house or not, a fair and accurate account of a debate in either house is protected by the same principle as that which protects the fair report in court of justice, that the advantage of publicity to the community at large overweighs any private injury resulting from the publication unless malice is proved.

Freedom from arrest is recollection of liberties attached to the attendance at the traditional popular assemblies or in that principle the king’s servant doing their duty in court should not be impeaded by legislation in lower tribunal. The principle was established at a relatively early date. The first known assertion of freedom of arrest seems to date from 1340, when the king released the member from prison during the parliament, following that in which he had been prevented by his detention from taking seat. In the Thorpe case the speaker of the house of common was imprisoned in 1452. So the commons easily acquiesced in the decision that they immediately elected the new speaker. Development came into existence in 1604 sir Thomas Shrilley who had been elected in common but had been imprisoned in the fleet in execution before the meeting of parliament was discharged. The warden of fleet was committed for contempt, having initially refused to release the member. These events were followed by the privileges of parliament act, 1603 which recognizes the privilege of freedom of arrest.

Origin of parliamentary privileges was not unknown in ancient India. In Vedic time, there were two assemblies named Sabha and Samiti which were keeping the checks on all the action of the king. In 1600 the east India Company came to India for trade. They intertwined themselves in the affair by east India company act 1784.  The charter act of 1833 emphasised on legislative centralization.  An expansion of the legislative council act of India was provided by 1853 charter act. The claim of privileges can be seen in demand of the legislative councilor under the charter act of 1853.[2] Consequently, the power of legislative council was defined by Indian council act 1861. This act extended the privileges available to the members and to the members of the newly formed legislative  council of state,  the Indian council act 1892, the privileges were reiterated and extended which include the debate, any motion passed by parliament etc. the government of India act 1915, the entire position of parliament privilege which were obtained were consolidated. In the government of India act, 1919 they gave qualification to freedom of speech to members. Government of India act 1935 contained the provisions related to privileges of members of Indian legislature.  The Indian independence act 1947 accorded sovereign legislative power on Indian domain.

Need and objective of privileges: Erskine may defines it this: “parliamentary privilege is the sum of peculiar rights enjoyed by each house collectively... and by members of each house individually, without which they couldn’t discharge their functions, and which exceed those possessed by other bodies and individuals,” . It should be emphasized that these privileges of parliament are essentially those of the house as a whole; individual members can only claim privilege in so far as any denial of their rights, or threat made to them, would impede the functioning of the house.[3]

Privilege is an important part of law and custom of parliament, to be collected says coke, “out of the rolls of parliament and other records, and by presidents and continued experience”, but the aspects of law are still obscure.[4]

The objective of the parliamentary privilege is to safeguard the freedom, the authority and the dignity of the institution of parliament and its members. Thus privileges are enjoyed by the individual members because the house cannot perform its functions without unimpeded use of the services of its members and by each house for the protection of its members and the vindication of its own authority and dignity.[5] Thus it’s the essence of parliamentary system of government that the people’s representative should be free to express themselves without fear of legal consequences. The court has no say in the matter and should really have none. The immunity has been granted to protect the integrity of the legislative process by ensuring the independence of individual legislators.[6]

Sources of parliamentary privileges in India:

1)      The constitution: there are several provisions in the constitution expressly provide such privileges, with the extent thereof, e.g. , freedom of speech in parliament [art. 105 (1)] , immunity in terms of anything said or any vote given in the house or any committee , immunity in respect of any publication of reports, papers which is published by or under the authority of either house [art 105 (2)]; bar of jurisdiction of courts to inquire into proceedings of the house on grounds of irregularity. [Art. 122(1)]; bar of jurisdiction of courts over officer or members of parliament exercising constitutional powers for regulating procedure business or order in parliament. [Art 122(2)]; immunity in respect of publication of proceedings of a house in a newspaper, or by wireless telegraphy as part of any service provided by a broadcasting station [art. 361A].

2)      Statutes: art 105(3) empowers parliament to ‘define’ privileges by ‘law’. Since it doesn’t refer any exhaustive codification, it would follow that any statue made by parliament after 26-1-1950 which defines any privilege, even though in part, such law will prevail in respect of matters not dealt with by the constitution in article 105(3). Though no comprehensive law has been made yet there are some statues which deal with privileges of parliament e.g. parliamentary proceeding (protection of publication) act, 1977. Such legislation however must not be inconsistent with any provision of the constitution , because of art 245(1).[7]

3)       Privileges of the house of commons as existing on 26-1-1950- by reason of art 105(3), expecting the matters relating to which the constitution has specifically provided for, privileges in other matters, shall be the same as those of the British house of commons, as on 26-1-1950, so long same as those of the British house of commons, as on 26-1-1950, so long as the Indian parliament itself does not make any law ‘defining’ any of the privileges. So far as our constitution is concerned it art 105 guarantees freedom of speech. In regard of arrest is concerned it has been limited to civil cases and has not been applied to arrest as criminal charges or to detention under preventive detention act.[8]

4)      Rules Of The House- though art 118(1) doesn’t refer to ‘privileges’ but confers rule making power upon each house of parliament to make rules to regulate ‘ its procedure and conduct of business’, it is possible for a house to make ancillary or subsidiary provisions relating to the privileges, while regulating its ‘procedure’. But such rules will be valid only if they are not inconsistent with the constitution, i.e., not only the express provision but also the privileges as they existed in the British house of commons on 26-1-1950,, because they have the sanction of the constitution under article 105(3). Since the privileges of the British House of Commons are codified and have to be collected from various sources, there is scope for the houses of the Indian parliament for elaborating them by means of rules provided they are not inconsistent with the British privileges.

5)      Precedents- since each house of parliament has exclusive power to regulate its own proceedings and presiding office (speaker or chairman) wields that power on behalf of the house, the interpretation given by the presiding officer to the constitution or the rules of the house prevails, unless superseded by substantive motion or resolutions or rules made by the house or statue.[9]these rulings from the chair have, within the house an authority analogous to decision of judges and are followed in subsequent proceedings or by subsequent presiding officers as ‘precedents’. In course of time, established precedents may be embodied in the rules made by the house. But the precedents or the rules circumscribed by art 105 of the constitution. One of the principles of the British law of privileges is that no house of parliament can, by its own declaration, create a new privilege.[10]

6)      Judicial interpretation- since the courts have to interpret the constitution, including art 105 and 194 as well as the laws relating to the powers and privileges of the legislatures in cases properly brought up before them by persons outside the house of parliament who may have been affected by the exercise of those privileges, decisions of the highest court of the land, i.e. supreme court, constitute a part of the law of privilege.[11]

Constituent assembly debates:

Shri H.V. Kamath raises the question to Dr Ambedkar asking that “is it necessary or is it desirable when we are drafting our own constitution, that we should lay down explicitly in an article that the provisions as regard this matter will be like those of the house of commons in England?” he says that there is nothing derogatory to the dignity of Indian constitution in making reference to the UK. He further said that India has been declared as full member of the commonwealth, so there should be no objection in referring to the House of Commons in England. Shibban Lal Saxena and P.S. Deshmukh suggested that an appendix should be complied and included in the constitution listing the various privileges.

Dr P.S Deshmukh said that the privileges of the members of commons are well understood and well defined and so there should be no difficulty in enumerating them in schedule. Allaid Krishnaswami Ayyar, replying to these points supported the reference to the House of Commons stating that it ensured that the members enjoyed the widest privileges since if the privileges were defined by reference to existing privileges of the legislatures in India as existing then the house would not be able to punish for its contempt. He said that to formulate all privileges would require more time than was available since it would entail a detailed look into the working of parliamentary privileges in England and thus, the reference was the only way out.

Pandit Lakshmi Kanta Maitra also opposes and said that “we are framing a constitution for a free, independent, sovereign, republic and we are going out of our way to prescribe the rights and privileges for the interim period by reference to what is contained for the members of the house of commons of the parliaments of the UK, though there also there is no exhaustive list of the rights and privileges which the members enjoy.

None of the amendments found acceptance with constituent assembly and draft article is framed by the drafting committee was adopted with an amendment by Jaspat Roy Kapoor extending the scope of the immunities to speeches and statement in parliamentary committees of either house.[12]

Before 42nd amendment the article 105 (3) was:

(3) in other respects, the powers, privileges and immunities of each house of parliament and of members and the committees of each house, shall be as such as may from time to time be defined by parliament by law, 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 the constitution.

It appears the relevant provision of the 42nd amendment act, 1976 was never brought into force, for, the janta government replaced and Indira government before a notification to bring into force sec. 21 of the 42nd amendment act could be issues. Hence, the original clause continued to be in force up to 26-01-1950 when the 44th amendment act, 1978, brought into force the amendment in clause (3).

Prof. Shibban Lal Saksena raises the question in the assembly regarding clause (2) of article 85 (at present 105) that privilege is given only in respect of publication “under the authority of either house of parliament”. He said that when 10-15 years ago an honorable member of the central assembly, Pandit Krishna Kant Malaviya had made a speech in the house which was suppressed by the papers but he published his speech in this paper at Allahabad. Prosecution was launched on the grounds of publication. He said that whatever the member speak in the house should be privileged. If the public is not known to what he said, he can’t discharge his duties to the electorate which has chosen him.

Mr. Nazriuddin Ahmad suggested that speeches made in any of the house which are not objectionable and are not ruled out by speaker or the chairman should also be fully published outside without the authority of the house of parliament. Dr. Deshmukh felt that privileges ought to be embodied somewhere, so that so long as a particular speech has been made in the house, there is no offence committed if it happened to be published in the papers.

Shri Jagat Narain Lal, said that the member who has delivered the speech want the further immunity to publish it outside that is related with freedom of the press but that doesn’t pertain to the freedom of the member so far as his speech or his vote in parliament is concerned its neither far nor proper.

Ananthasayanam Ayyangar, stated that what the members were demanding was actually a license and not a privilege and the clause as it stood was necessary in public interest.

 Thus, Clause (2) of Article 105 expressly declares that no person shall be liable in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings. Common law accords the defense of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere. The same is the law in India.

Ever since the time of the constituent assembly, the question has been agitated as to whether independent India should not have her own code of parliamentary privileges instead of relying upon the uncodified law of the British House of Commons.

The major ground for leaving the privileges uncodified has arisen because of the decision of the supreme court in Sharma v Shri Krishna [13], that so long as parliament does not exercise its legislative power to codify any of its privileges, the latter part of clause (3) of Art. 105 will operate to make the privileges of the British House of Commons available, regardless of any of limitation imposed by the fundamental rights included in part III of the constitution; but that as soon as parliament seeks to legislate all the fundamental rights in part III will operate as limitation on the legislature power by reason of Art. 13(2). In other words, if parliament now enacts a statute embodying any of its privileges, the court will be entitled to examine the constitutionality of its provisions, with reference to any of the fundamental rights, such as the freedom of speech and expression guaranteed by article 19.

India was to be a Republic and the Queen would no longer be the nominal head of the country thus, the privileges would have to be conferred by the Constitution. In India’s case therefore, three options were available: The first alternative was to elaborately define and enumerate the privileges in the Constitution itself. This alternative, the Drafting committee did not wish to adopt. The second alternative was to allow the existing law to continue until a contrary law was passed. This was not possible as the Government of India Act, 1935 conferred no privileges on the legislatures. The third alternative of making the privileges of the House of Commons applicable, until they were defined by Parliament, was therefore followed as there was ‘no other alternative way open to us.’[14] Yet, fears that the law may never come to be codified were expressed in the assembly itself. On 16 October, 1949, Dr. Rajendra Prasad noted that, ‘Parliament may never legislate on that point and it is therefore for the members to be vigilant.’[15] The warning has proven prophetic.

 The English system of giving unfettered freedom to the legislature in this respect is not fully applicable in India for two reasons:-

Firstly England has no written constitution and no limitation upon the omnipotence of parliament, and the courts are powerless to review the acts of the sovereign legislature. In India the situation is otherwise. The constitution is meaningless if importance is given to the privileges of the parliament as to make the fundamental rights nugatory in that sphere. Secondly, if the validity of a legislative enactment, solemnly made, is open to judicial review, there is no reason why we cannot trust our courts with similar power as regards the privileges of parliament, is they are embodied in the enactment.

 In England the bulk of ordinary law is still uncodified. On the other hand the privileges of the parliament though uncodified is fairly well settled by leaving treatises and precedents in the same manner as rest of common law. In India, on the other hand, statute law has become the rule and very few branches of the law still rest on the common law. In the absence of codification, the position is somewhat confusing and this itself is likely to lead to more breaches of privileges than would have taken place under a code.

 Mr. Hidayyatullah, an ex chief justice of the supreme court of India, unequivocally oppose codification[16] on the curious ground that-

“if the privileges were codified, you will be exposed to an alien body” (i.e., the judiciary),

And that if they were left uncodified, the speaker or the chairman would have the final power to decide each case, without interference from ‘another body’.

 

Privileges with respect to the constitution of the House:

It’s a privilege of the House of Commons to provide for its own proper constitution as established by law. The origin of this privilege is to be found in sixteenth century. In 1515, Henry VIII transferred to the speaker, acting for the house, the authority to license members to depart before the end of the session.[17] . In 1536 the kind authorised Rhomas Cromwell to continue to sit in the commons though he had been elevated to the peerage before the session began. In 1571 a select committee approved returns from boroughs which had not elected members to the previous parliament, though only eight years previously such actions had required the agreement of the lord steward. In 1576, the house determined the vexed questions of whether a member who was also queen’s sergeant should take his seat in the commons or act as an official assistant in the lords and similar issues concerning those ill. At the same period, general rules were laid down by the house on the right to continue to sit of those who were arrested for debt, indicted for felony or even outlawed. In the 1580s, chancery began to issue rights for new elections only when notified by the house of vacancy, and for the first time the house decided the outcome of disputed elections. In 1593, the scrutiny of elections and returns was entrusted to the committee of privileges which had first been set up in 1584-85.

The commons jurisdiction in determine the right of election was acknowledged by the parliamentary election act 1695. In the 18th century however the commons continued to exercise the sole right of determining whether electors had the right to vote, while inquiring into conflicting claims of candidates or seats in parliament; until, in 1868, the house delegated its judicature in controverter elections to the court of law, retaining its jurisdiction over cases not otherwise provided for by the statue.

The important privileges of each house of parliament, its members and committees may be said to be:

        i.            Freedom of speech in parliament. (Art.105 (1) of the constitution of India).

      ii.            Immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee thereof. [art. 105(2) of the constitution of India]

    iii.            Immunity to a person from proceedings in any court in respect of the publication by or under the authority of either houses of parliament of any report, paper. Votes or proceedings. [art. 105 (2) of the constitution].

    iv.            Prohibition on the courts to inquire into the proceedings of parliament. [article 122 of the constitution]

      v.            Freedom from arrest of the members in the civil cases during the continuance of the session of the house and 40 days before its commencement and 40 days after its conclusion. [section 135A of the code of the civil procedure]

    vi.            Exemption of the members from liability to serve as jurors;

  vii.            Right of the house to receive immediate information of the arrest, detention, conviction, imprisonment, and release of a member. ( rules of 220 and 230 of the rules  of procedure and conduct of business in lok sabha,)

viii.            Prohibition of the arrest and service of legal process within the precincts of the house without obtaining the permission of the speaker. (rule 232 and 233 of the rules of procedure and conduct of business in lok sabha,)

    ix.            Prohibition of the disclosure of the proceedings or decision of a secret sitting of the house. (rule 252 of the rules of procedure and conduct of business in lok sabha)

      x.            Members or officers of the house are not to give evidence or produce documents in courts of law, relating to the proceedings of the house without the permission of the house.

    xi.            Members or the officers of the house are not to attend as witnesses before the other house or a committee thereof or before a house of state legislature or a committee thereof without the permission of the house and they can’t be compelled to do so without their consent.

  xii.            All parliamentary committee are empowered to send for persons, papers, and records relevant for the purpose of the inquiry by a committee. A witness may be summoned by a parliamentary committee who may be required to produce such document as are required for the use of a committee. (rules 269 and 270 of the rules of procedure and conduct of business in lok sabha)

xiii.            A parliamentary committee may administer oath or affirmation to a witness examined before it. (rules 272 of the rules  of procedure and conduct of business in lok sabha, );

xiv.            The evidence tendered before a parliamentary committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid on the table of the house. (rules 275 of the rules of procedure and conduct of business in lok sabha).

 

Limitation conferred on the parliamentary privileges:-

The scope of article 105(1) is to confer freedom of speech on legislator is however subject to two restrictions:-

Those provisions of the constitution which relates to the procedure on the legislature, e.g. article 208 and 211.

1)      The rules and standing orders of the house in question which regulate the procedure in the house.

Clause (1) doesn’t mean that there is an unrestricted license to speak anything within the walls of the house. The freedom conferred by this clause is “subject to the other provisions of the constitution”, such as article 19(1)(a), 118 and 121.the only difference, as has been stated is that when it’s a speech delivered in parliament, the restrictions under article 19(2) are enforceable not by the court, but by the speaker applying the rules made under art 118.[18] The freedom is “subject to the provisions of the constitution” which means subject to the provisions of the constitution which regulates procedure of parliament, i.e. article 118 and 121.[19] Article 19(1)(a) is not a provision which controls the first clause(1) of art 105. Its only such provision of the constitution which regulates the procedure those are so included.[20]

The restrictive words “subject to the provisions of this constitution” at the beginning of clause (1) have, however been omitted from clause 2.[21] The result is, that while the freedom of speech within the house is subject to the restrictions imposed by article 19 and 121 or by the relevant rules of the house, no action in a court of law lies for violation of any of the foregoing provisions, say for contempt of court, defamations etc.

It follows that freedom of speech is “subject to the rules” framed by the house under its power to regulate its internal procedure.

The relevant rules of the house of people , imposing limitation upon the freedom  of speech of a member, are rules 352-354 : (1) reference to any matter which is subjudice,(2) reference to speech or conduct of another member,(3) to refrain from using parliamentary expressions;(4) from making reflection on the house, its member and proceedings;5) reference to the name of the president, chief ministers of states or to judges of supreme or high court or other person in high authority etc. rule  353 prohibits a members while exercising his freedom of speech from making allegations of a defamatory or incriminatory nature against any person unless sufficient notice is given to the speaker and also to the concerned minister, so as to make an investigation into the matter for the purpose of reply. But the speaker will be the authority to decide as to whether the allegations against such persons should be allowed or not when the speaker is of the opinion that the allegation is derogatory to the house or that no public interest is served in making unless its definite statement of a policy minister.

Another limitations is that the freedom offered by article 105 (1) is exercisable in parliament and subject to the relating to the procedure in parliament’. These words make it clear that article 105(1) cannot ne invoked unless a session of parliament has commenced. Hence neither the rules of business of parliament nor the freedom of speech of its member can have effect until the president has delivered his address under article 87(1) to inform parliament of the causes of its summons. In result, its member cannot claim any right to put questions to the president or make any comments on the occasion of the president’s address.

The legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant article dealing with the said fundamental rights; their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.

The freedom under article 19(1) (a) is a ‘fundamental’ right, so that it is enforceable by a petition under article 32 in case of its infringement whereas the freedom under article 105 (1) on the other hand stands outside part III of the constitution, and its enforcement lies exclusively in the hands of the speaker or other presiding officer of the house in which the speech takes place.[22]

The freedom under article 19 (1) (a) is subject to reasonable restrictions by the legislature on any of the grounds specified by the constitution. The freedom under article 105(1) is not subject to regulation by any legislature on the grounds specified by article 19(2)-(6), and the power of legislation conferred by article 105(3) upon parliament , relating to privileges excluded the freedom of speech provided in cl(1) can’t be taken away or abridged by legislation at all. In result the freedom of speech in parliament is an absolute freedom, in as much it’s not subject to legislative restriction or regulation, i.e., it cannot be restricted under article 19(2). [23]The privileges conferred under this article is confined only to the members of parliament i.e. the elected members. The provision of article 105(3) are constitutional law and not ordinary law made by parliament or state legislature and, therefore, they are as supreme as provisions of articles relating to the fundamental rights in part III of the constitution.

In a democratic country governed by a written Constitution, is the Constitution which is supreme and supreme and sovereign. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any Legislature in India in the literal absolute sense.

Conclusion-

'Privilege' is a special right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favour granted to one person as against another to do certain acts. Thus the drafting committee was concerned about giving parliament the widest privileges as exercised by house of lords but unlike U.K., where the highest court is in parliament itself and a general warrant issued by the house is not subject to scrutiny by any court, in India house of parliament are not court of justice but can consider motion regarding their privileges and immunities. In Indian constitution the privileges of parliament are made subject to the constitution and they can’t override the other provisions of the constitution.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                              Bibliography

 

 

1.      KASHYAP SUBHASH C., Constitutional Law of India, Vol 1, Universal law Publishing Co. Pvt Ltd.

2.      BASU D.D., Commentary on Constitution of India, 8th ed., Vol. 4, Wadhwa, Nagpur

3.      JAIN M.P., Outlines of Indian Legal and Constitutional History, 6th ed. Lexis Nexis Butterworth’s Wadhwa, Nagpur.

4.      Constituent Assembly Debates, VOL.VIII

5.      May Erskine, 17TH edn. Pp.212, 230.

6.      Hood Phillips And Jackson, constitutional and administrative law ,8th edn.2001, chp XIII,’parliamentary privilege”, Para 13.001 and 13.002 at p. 270

7.      Bradley, A.W and Ewing, K.D, constitutional and administrative law ,thirteenth edition 2003

8.      Griffith & Ryle, Parliament: functions, practice and procedures

 

 

 



[1] Report of joint committee on parliamentary privilegdes (HL 43-I,HC 214-I,1998-99), para 3 ( citied here as the ‘nicholls report’) and see P M Leopold [1999] PL 604. Also Erskine may,chs 5-11, Griffith and ryle, parliament, ch 3; oliver and drewry (eds) the law and parliament, chs 1,2,4,5,7.

[2] JAIN M.P., Outlines of Indian Legal and Constitutional History, pg 83

[3] This principle was undermined by the passage of s.13 of the defamation act 1996. In response to a specific case, parliament agreed an amendment to a bill going through at the time. This enabled an in individual (whether a member, witness or other person) to waive privilege as far as he or she is concerned-mainly to enable a defamation case to pursued. It didn’t address the issue of what happened when several members, or members and non members, are involved. The joint committee recommended that this provision be repealed [Para 89].

[4] Bradley, A.W and Ewing, K.D, constitutional and administrative law,pg-192

[5] Parliamentary Practices,  20TH Edn. At pg. 70-71.

[6] Tej Kiran Jain V Sanjeeva Reddy, AIR 1970 SC 1573:(1970) 2 SCC 272: (1971) 1 SCR 612; P.V. Narashima Rao V State (CBE/SPE),AIR 1998 SC 2120: (1998) 4 SCC 626.

[7] BASU D.D., Commentary on Constitution of India, pg. 5051

[8]  See Ansumali Majumdar V State Of W.B., AIR 1952 Cal 632.

[9] Cf. MAY,17TH edn. Pp.212,230.

[10] (1702-4)CJ 555 (560).

[11] E.g. M.S.M. Sharma v Shri Krishna , AIR 1959 SC 395:1959 (supp-1) SCR 806;Ref. under art. 142, AIR 1965 SC 745; (1965) 1 SCR 413; Jatish v Harisadhan, AIR 1962 SC 613; (1961) 3 SCR 486.

[12] Constituent Assembly Debate, Vol. VIII, pp 144-156.

[13] M.S.M. Sharma v Sri Krishna, AIR 1959 SC 345: 1959 (Supp.-1) SCR 806.

[14] SEERVAI H.M.;CONSTITUTIONAL LAW OF INDIA 2181, PARA 20.68 (N.M. Tripathi Pvt. Ltd. Bombay 4th ed.1993).

[15] A.G. Noorani, ‘Privilege to expel’ (2007) 24 Issue 02 Frontline.

[16] Seminar organized by the rajaji instituent of public affair and administartaion:statesman calcutta dates on 6-9-1981 p.7.

 

[18] The author is unable to agree with seervai [constitutional law of India, 2nd edition vol II , p1174], that subject to the provisions of this constitution.” in article 194(1) or art 105(1), could not refer to art. 19 (1)(a). elaborate reasons have just been discussed previously why seervai’s plea is not acceptable.

[19] See M.S.M. Sharma v Sri Krishna, AIR 1959 SC 345: 1959 (Supp.-1) SCR 806., keshav singh’s case AIR 1965 SC 745, P.V Narishma Rao v State (CBI/SPE),(1998)4 SCC 626:AIR 1998 SC 2120.

[20] Raja ram pal v Honourable speaker lok sabha,(2007) 3 SCC 184.

[21] Yogendra v state AIR 1967 Raj 123 (para 6).

[22] Tej krian v reddy,AIR `970 SC 1573: (1971) 1 SCR 612: (1970) 2 SCC 272(para 8) affirming AIR 1971 Del 86.

[23] P.V Narishma Rao v State (CBI/SPE),(1998)4 SCC 626:AIR 1998 SC 2120.

 

"Loved reading this piece by jaya godhwani?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Click here to join our Telegram group.

Tags :
Published in Constitutional Law
Views : 2200
Other Articles by - jaya godhwani
Report Abuse









×

Menu

Post a Suggestion for LCI Team
Post a Legal Query
Muslim Personal Law     |    x