PRIVILEGES OF PARLIAMENT NOW & THEN
Parliament in India is one of the most important pillars standing with an aim to achieve the goals of national reconstruction and nurturing the values of freedom , secularism and democracy. As a microcosm of the nation it has consistently reflected the feeling, hopes and aspiration and even weakness and frustrations of the people. It has been considered as the most vital political institution on whose working depends nation’s success. But all this is possible only if its members devote themselves whole-heartedly to meet the rising expectations of the teaming millions. A proper exercise of their duties and responsibility want certain liberties and immunities on their part so as to enable them to carry out their obligations unhindered by external force and internal pressure what we call them parliamentary privileges.
The term privilege does not mean any special benefits or entitlements enjoyed by Members of Parliament or state legislators but the immunity from ordinary law that, together with the potential exercise of parliamentary powers, enables the Houses of Parliament (and state legislatures) to carry out their primary functions of legislating, debating and inquiring more effectively, efficiently and independently.
The word ‘Privilege’ in parliamentary parlance stands for 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. They are indispensable for an effective democratic process. These power and privileges are the result of hard painful struggle stretched over centuries. It will not be wrong to say that people in every empirical period fought to grab them in order to work smoothly and uninterrupted and also with respect.
Article 105 (3) of the Constitution of India says "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]"1.
Significance of the Privileges: Among the three pillars of the Indian government (Legislature, Executive and the Judiciary) Parliament is the most important one. Commanding a superior position over others due to the nature of the work it is associated with it is imperative to enable the members perform in a free and frank atmosphere. Powers and privileges make an important part of the law and customs of the Parliament. They tend to preserve the relationship between the legislature and the judiciary and with the press as well. It is a popular fallacy that the procedure and practices of the Indian Parliament is the replica of the west minister’s model and what is there in our hand is nothing but it is for what the English people fought for years to get the status parallel enjoyed by the Lords and Abbots since that time they considered mere petitioner. So they struggled very hard to have a say in the legislation.
Of course the British Parliament have inspired us a lot and played a significant role in shaping up of our constitution but there is no denying the fact that over the decades our Institution itself has gone through a tremendous changes, accommodating new challenges and identifying new problems. After independence the first task in hands of the Constituent Assembly was to frame the constitution that suited best to the country. Even though the British model was the influencing force for structuring the Constitution. The influence might be because of our long exposure and familiarity to the British Culture but the constitution maker never ignored the conditions and traditions peculiar to India. This is very much evident from the fact that Indian Parliament is not as much sovereign as the British is. Thus to maintain the dignity and upholding the tradition in the legislature and enhance the pristine value of the house as well as that of their own legislative members need certain liberties which we simply refer as privileges and immunities.
Historical Background: Privileges, which are available now were never found in the similar fashion. In the 11th century king used to take advices on state matters from the great men. Later on that assembly of great men took the form of committee which then became an assembly court. Though they were assigned the specific duties but never ever their decision was considered final. Rather the king had the final veto. The royal courts were held thrice a year, Chritsmas, Easter and Witsun where the archbishop, bishops, earl, thegns, abbots, knights had to be present other wise they were penalized for their absence.
In the later half of the 12th century Henry II held great council where bishops, earls and barons were invited to discuss various issues. In 1258, the barons at oxford demanded yearly three parliaments. During this period though the king relied upon small number of personal advisors who were usually drawn from the baronage group but due to complexities of matter men of expertise even from the non-baronial background were also included. Thus two bodies were existed side by side -- a general assembly consisting the tenant-in-chief used to meet at intervals to advice the king on major issues, whereas the small body of personal advisors, which used to assist him in day-to-day matter. Parliament is the successor of the occasional assembly, still retaining its character justified first time its character in 1258. In 1275 commons were included in a more genuine manner in the national assembly to discuss the affairs of the kingdom some thing more than the mere financial matter. The Parliament of 1295 was called the model Parliament because of its complete embodiment of all the characters. However the statute of 1322 did not include the lower clergy whose consent was necessary in matters touching the king and the realm though was insisted in 1321. That withdrawal of lower clergy helped them to unite and form the commons into one body. In 1376 the practice was started to elect the speaker so that their agreed reply could be reached to the king. Also the impeachment process, though not in a perfect shape, was first started in the same year against Edward. The king declared the commons lawful in discussing the financial matters in 1407 and in 1455 the first express claim for the liberty of speech was made in the commons. Though with the passage of time the discussions in the English Parliament were free and unrestricted however in every reign every higher authority had his or her own method to restrict the deliberations. 1586 saw the commons insisted to enquire themselves into the election dispute and in 1667 they resolved that all the aid provided to the king by the commons and the rate or tax ought not to be altered by the lords. During 1628 the king was made to sign the petition of rights. On his denial he was put on trial, condemned and executed. Parliament proclaimed England a ‘Commonwealth’ without the ordinances of the king or the lords. By 1688 -- 89, during the Hanover period, Britain had become the limited monarchy and Parliament established supremacy over the royal prerogatives. The Septennial Act of 1716 contributed to the strength of the House of Commons whereas their (House of Commons) victory of democratization was ultimately established in 1919.
Important Privileges of Parliament: Though our constitution does not exhaustively enumerate all the privileges of parliament or state legislature but it simply lays down under Article 105(3) and 194 (for state legislature) that other powers and privileges of the House and its Members and Committees would be the same as those of the House of Commons in England on the date of commencement of the constitution.
The important privileges of each House of Parliament and of its members and committees are:
(A) Those Specified in the Constitution
§ Freedom of speech in Parliament. The constitution says, "subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament "2.
§ Immunity to members. The constitution says, "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"3.
§ Constitution prohibits the court in respect of proceedings. It says " (i) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure"4.
§ "No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers"5
(B) Those Specified in the Statute
§ Freedom from arrest of members in civil cases during the continuance of the session of the House and forty days before its commencement and forty days after its conclusion"6.
§ "Immunity to a person from any proceedings civil or criminal, in any court in respect of the publication in news papers of a substantially true report of any proceeding of either House of Parliament unless the publication is proved to have been made with malice"7.
(C) Privileges Specified in Rules of Procedure
§ Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment and release of member -- when a member is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a court or is detained under an executive order, the committing judge, magistrate or executive authority, as the case may be, shall immediately intimate such fact to the chairman indicating the reasons for the arrest, detention or conviction, as the case may be as also the place of detention or imprisonment of the member in the appropriate form set out in the Second Schedule"8.
§ "Exemption of the members from services of legal process and arrest within the precincts of the House"9.
§ "Prohibition of the disclosure of the proceedings or decisions of the secret sittings of the House"10.
(D) Privileges Based upon Precedents
§ Members or Officers of the House cannot give evidence or produce documents in courts of law, relating to the proceedings of the House without the permission of the House"11
§ Members or Officers of the House cannot attend as a witness 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 cannot be compelled to do so without their consent"12
Apart from the above privileges both Houses are also enjoying some consequential powers in order to protect their privileges. They are:
§ "To commit persons, whether they are member or not, for breach of privilege or contempt of the House"
§ "To compel the attendance of witnesses and to send for papers and records"13.
§ To regulate its own procedure and the conduct of its business. The Constitution of India says "each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business"14.
§ To prohibit the publication of its debates and proceedings,
§ To exclude strangers from the House"15.
Even if the member is under custody he or she enjoys the right to correspond with the Chairman/Speaker, Secretary-General or Chairman of the Parliamentary Committee, without any let or hindrance. Withholding any communication addressed by a member in custody to the Chairman/Speaker, Secretary-General or the Chairman of a Parliamentary Committee amounts to a breach of privilege.
Parliament is entrusted with important function of law making. Besides this, by means of resolutions, motions for adjournment, discussions and questions addressed by members to ministers, the parliament also exercises control over the administration of the country and safeguard people's liberties. To perform the task of such a great importance it is necessary that the august House and its members must be free. Then only unhindered and uninterrupted outcome is possible.
However looking at the present scenario we are forced to think otherwise. The situation prevailing is just opposite and it’s a common man who is confronted with the problem rather than the legislator. Those powers for which we fought for centuries and also tried not to codify as codification might limit the sphere have change their meaning. Our parliamentarians are taking undue advantage and making mockery of them. Making statements within the privileged precinct of Parliament have the effect of unjustly injuring the reputation of individual citizen or the public in general. Unrestricted speeches on the floors of the House are no doubt valuable, provided it is not misused. Though the presence of Fundamental Rights and doctrine of Judicial Review the privileges cannot be claimed so easily even than our legislators enjoy the quantum of the privileged. Very often these privileges are misused, lowering down the sanctity of the House. Nation has witnessed so many noisy sessions. Shouting slogans, mongering and walkout even when the crucial business is under consideration are not uncommon. Though covering under the shield of Article 19 one can say that every one in democracy has the right to speak and express his or her opinion. The answer is ‘of course yes’ but when they affect others or things go out of control and nation has to pay for that it is really a matter of thought. It is quite clear from the parliamentary scene that our so-called representative friends are very well interested in the muscle’s strength. They not only express their humble feelings but the fighting power and the technique how one can overcome to those who really want to accomplish their task and fulfill the obligation. And the one who disturbs the floor more as compare to other emerges winner.
Do we have an alternative for that? On the on-going scenario at least the common man doest not have any but to have patience and shed their tears because ultimately it is he who is going to bear the burden for what elected members are doing be it in Parliament or state legislature. Physical fights, throwing articles on each other as what happened in UP assembly in October 1997 is a shameful incidence. Snatching papers from the hands of the chair is not unusual phenomena. March 16, 1998 saw an awful incidence when the members of the opposition in Orissa legislative Assembly tore the speech of the governor K.V. Rangunathan Reddy which were distributed to them earlier because they wanted the Governor to step down and when he paid no heed the opposition did so to show their anger. The similar stage show was seen in Andhra Pradesh legislative assembly where the governor was forced to abruptly end his speech within five minutes of his address because the opposition members raised towards the podium and started shouting slogans against the government’s inaction in the wake of suicide by the cotton grower in the state. They even tore the speeches of the governor and flung them into the air, one of which landed on the shoulder of the governor16. Not only the states but supreme legislature i.e. the Parliament is not untouched from such unruly scenes. E.g. When the bill of reservation quota for women was about to be presented before the Lok Sabha on July 14, 1998. more worst scene was staged there. Not only that day but whenever government tries to move the bill always members behaves objectionably. They used to walkouts, dharnas, reaching to the well of the House. In a recent happening the BJP led opposition and the congress led government almost came to blow at Rajya Sabha While Finance Minister P.Chidambaram was replying to the discussion on the general budget. Since the opposition wanted to have a discussion on Nandigram issue but finance minister continued replying to the budget. BJP leader Ahluwalia when fail to call out Union Minister PR Dasmunshi as he did not pay any heed, Ahluwalia went to the treasury bench and tried to prevent finance minister from speaking. Finance minister was seen protesting to Ahluwalia. Seeing this other congress members including Pachauri and Dasmunshi came to the rescue of the finance minister while the BJP members rushed to provide support to Ahluwalia17. This is the scene we frequestly watch, on television. It results in nothing but the adjournment of the House, some times for few minutes but it could very often stretch to many days or week. As Tehalka.com case where the House got adjourned for more than a week. Do we see such scenes in other Parliament in the world or had any such thing happened during Nehru or Shastri’s era.
We know that our parliamentary proceedings are the open book, constantly being watched by the millions of the people not only in the country but the world over through active media be it a print or electronic. Any lowering in the quality of its functioning or deviation from the requisite norms become much more perceptible and pronounced. This not only unable to set the tone for the sister concern, i.e., state legislatures but also affects the image of the key institution before the word and what is more that it taxes heavily on the nations resources.
Paralyzing the parliament by opposition, be it BJP led NDA or Congress led alliances, our great leaders always forget that each parliamentary minute costs about Rs 20,000. If we calculate in simple term we find that about 6 hours a day one House (Lok Sabha or Rajya Sabha) sits to legislate on the business and if we calculate the money spend for a day, it terns to be around Rs. 72,000,00. If a day is lost through pandemonium without performing the constructive business we simply lose lakhs of rupees and if the same drama staged for more than a day it means the figure shoots up to crores. So who is responsible for those? Our more sensible representative just lost their sense on this issue that the money they are flushing down the drain doest not comes from their pocket but from the common man’s sweat and blood’s earning which in the form of taxes is sucked in. Being the developing country this loss is just unforgettable and unacceptable. Unfortunately we have witnessed several such occasions e.g. Tahelks .com case, where more than a weak is lost, other occasions includes JMM bribery case, Bofors scandal, Sugar scam, Fodder scam, Housing scam, where we have wasted hundred and hundreds of hours. The Lok Sabha lost over 60 hours as a result of disruption in 2003. Where as in 2002, apart from minor disruption in the House, Speaker Manohar Joshi adjourned the House sine die three days ahead of the scheduled conclusion of the monsoon session over the petrol pump allotment issue18.
The weak started on March 19, 2007 ended on March 24, 2007 saw two days of parliament wasted over the issue of police action in Nandigram village in West Bengal.
According to a survey the time lost by the House/Houses in the recent past is:
§ In the 11th Lok Sabha (1996 to 1998) 5.28 % of the total Parliament time was lost in pandemonium.
§ The above figure increased to 10.66% in the 12th Lok Sabha.
§ The figure tern to be more than th double i.e. 22.4 % between 1999 and 2004.
§ The current 14th Lok Sabha recorded 38 per cent time lost in the first two sessions,
§ The Rajya Sabha, reacting similarly to these issues, lost a whopping 46 per cent time in the corresponding 201st and 202nd sessions19.
If we would have utilized our time properly in constructive work then a better job for the nation could have been done and if I speak in terms of money we can feed millions of empty stomach or could have rebuilt several Gujarat or Andaman & Nicobar after being hit by the natural calamity.
Parliament is a supreme forum expected to set the tone and tenor but unfortunately the standard of Parliament is so degrading that all this has become a dream only. Today its members do not even hesitate to involve in bribe, taking money for raising issues on the floor, throwing mikes and articles on each other with utmost accuracy no matter how important agenda is in hand to be undertaken or absenteeism from the House or walkout during crucial matters. Turning any serious debate into a stage show has now become the irresistible occurrences.
To my mind the powers and privileges of the House and its members exist so as to maintain the dignity and independence of the House and its members and enhance their performance. But today the respect for parliament is awfully lacking. Even with the scant respect to the chair have made the credibility of Parlaiement suspected in the eyes of the public.
The main reason for this degrading standards are many but some of them includes:
§ Money and muscles power. No political party is an exception in this regard. They fight with their tooth and nail to save their places.
§ Secondly the judiciary has no say in the proceedings of the House. But could any one told that for how long should we have patience to tolerate this vandalism under the cover of privileges or immunities.
§ What adds fuel to the fire is our constitution according to which one cannot be accepted a culprit even if he/she has committed a crime no matter public knows what the truth is.
§ Lack of women participation. Though it is a known fact that women are less aggressive and physically not so strong. Also their dedication cannot be challenged then why we people are not willing to provide them their due shares in the legislature.
§ They are not penalized for the precious time they waste. If they are made accountable for what they do on the floor and the party bears the loss as its members are held responsible then the situation can be averted to a great extent. But we see that every party tries to shield their member.
It seems that our great friends believe in the short-term objective. They do not think that the day is not very far when a common man will ask for the loss incurred both in terms of money and time which they are generously wasting.
1. Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978 came into force with effect from the 20th June, 1979. Prior to that, clause (3) of Article 105 provided that "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 from time to time be defined by Parliament by law, and, until so defined, 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 i.e. on the 26th January, 1950".
2. Article 105 (1)
3. Article 105(2)
4. Article122 (1)
5. Article122 (2)
6. Section 135 of the code of civil procedure.
7. Parliamentary Proceedings (Protection of publication)Act 1979, S.53
8. Rules 229 & 230 of the Rules of Procedure and Conduct of Business of the House.
9. Ibid, 232 & 233.
10. Ibid, 252
11. First Report of Committee of Privileges of Rajya Sabha, presented to the House on May 1, 1958
12. 6th Report of the Committee of Privileges of Lok Sabha (2nd ), adopted by Lok Sabha on the December 17, 1958 and 33rd Report of the Committee of Privileges of Rajya Sabha, adopted by the House on March 30, 1993).
13. Op.cit, Rule 269 &270.
14. Article 118 (1)of the Constitution of India.
15. Op.cit, Rule 387.
16. Parveen Q. Khan, Privileges of the Legislators -- Its Use and Misuse, Originals Publications, 2002, p.119.
17. Times of India, March 20, 2007
18. Times of India ‘electronic version, August 22, 2002
19. In a report compiled by an NGO, National Social Watch Coalition published a report titled 'Citizens Report on Governance and Development - 2006.
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