1

CHAPTER - I

INTRODUCTION

Parliament is not only Legislative Organ but also in

the words of Lord Denman – a grand inquest of nation. 1

Parliament functions through free discussions, open

debate, exchange of arguments and criticism. Privileges

are, therefore, necessary to enable the members to

discharge their duties and responsibilities affectively and

efficiently without any interruption, 2 especially the

opposition bench who in a parliamentary polity has to

build itself as an alternative government. These privileges

are enjoyed by the members because House can not

perform its function without unimpeded use of the services

of its members and by each House collectively for the

protection of its members and the vindication of its own

authority and dignity.

Privileges are, therefore, necessary not only to help

the legislators, fearlessly discharge their duties but also to

keep up the solemnity and dignity of Parliament. Palmer’s

statement that “Parliament without parliamentary liberties

1. Lord Denman in Burdet v. Abbot, 14 Last 138, V.G. Ramachandran's

Law of Parliamentary Privilege in India, 1966 ed.
2. Report of Committee of Privilege in Captain Ramsay case, House of
Commons, Papers, 164 (1939-40) para 19, see M.N. Kaul and S.L.
Shakdhar's Practice and Procedure of Parliament, vol. I, 1978 ed., p.
177.
2

is but a fair and plausible way into bondage”, remains as

true even today as it was three hundred years ago. 3

Parliamentary privilege is an integral part of

parliamentary democracy as it existed in England and

adopted by many other democratic countries in the world.

Whenever the parliamentary democracy of British pattern

has been adopted, the concept of parliamentary privilege

has also been made a part of such a democracy, although

the extent of such a privilege has, of necessity varied in

each country. 4 However, in Australia and India, these

privileges have been incorporated in its entirety in their

respective Constitution. 5

1.1 Meaning :

In parliamentary language, the term “privilege”

applies to certain rights and immunities enjoyed by each

House of Parliament collectively and by members of each

3. Dawson’s Procedure in Canadian Constitution, p. 30.

4. For example in Canada, the parliamentary privileges of House of
Commons has been incorporated vide Sec. 18 of British North
America Act, 1867 as further amended by the Parliament of Canada
Act, 1875. Similarly provisions also exist in the Constitution of
Ceylon, New Zealand, South Africa and Ireland, See section 57 of
Constitution of Union of South Africa, 1909 and Section 15(13) of
the Constitution of Ireland.
Even in the case of “nation which has the Pres idential type of
democracy, the words “for any even in the House, they shall not be
questioned in any other place,” has been interpreted by the Supreme
Court of U.S.A. as incorporating the same immunity as is contained
in Art. 9 of the Bill of Rights of U.K., see Kilbourn v. Thompson 181,
103 U.S. 168.
5. Section 49 of the Commonwealth of Australia Act, 1900; Articles 105
and 194 of the Indian Constitution. s
 3

House individually. The object of parliamentary privilege is

to safeguard the freedom, the authority and dignity of

parliament. In the words of May, privilege means “the sum

of the peculiar rights enjoyed by each House collectively

and by members individually without which they could not

discharge their functions and which exceed those

possessed by other bodies or individuals”. 6 Redlich in his

book, “Procedure of House of Commons” has defined the

privilege as “sum of the Fundamental Rights of House and

its individual members as against the prerogatives of the

Crown, the authority of ordinary courts and special rights

of the House of Lords”. 7 From these definitions, it follows

that the privileges though part of the law of the land are to

a certain extent an exemption from ordinary law.

It may, however, be pointed out that the above

definitions do not in its minute details deal with definition

of the term ‘privilege’. The reason is obvious. To preserve

6. Thomas Erskine May, Treatise on the Law, Privileges, Proceeding and

Usage of Parliament, 18 ed. P. 64 (hereinafter cited as May’s
parliamentary Practice).
7. Redlich and libert, Procedure of House of Commons, Vol. I, p. 70. As
against this, according to Black’s Law dictionary, 4th ed. P. 1360,
‘privilege’ means “A particular and peculiar benefit or a dvantage
enjoyed by a person, company or class beyond the common
advantage of other citizens. An exceptional or extraordinary power or
exemption. A right, power, franchise or immunity held by a person
or class against or beyond the courses of law”. The dic tionary has
further pointed out that the matter may be of personal privilege
where it concerns one member of the House in his capacity as a
legislator, or of the privilege of the House, were t concerns rights,
immunities or dignity of the entire body.
4

the dignity and independence of the two Houses of

Parliament, it was thought that the term ‘privilege’ must

remain as undefined. 8 It is, therefore, submitted that it is

not possible to give an exhaustive and precise definition of

the term “Privilege.” 9

In the modern time, term parliamentary privilege has

to be viewed from a different angle than in the earlier days

of the struggle of Parliament against the executive

authority. Privilege at that time was regarded essentially as

a protection of members of Parliament against the

executive authority, which was not responsible to

Parliament. The entire background in which parliamentary

privileges are now viewed has now changed because

executive is now responsible to Parliament. Privileges are

now necessary to help the, members effectively and

fearlessly discharge their duties and responsibilities and to

keep the sanctity and dignity of Parliament.

8. The matter regarding defining parliamentary privilege was

considered by Select Committee of House of Commons on Official
Secret Act as early as in 1939 and it was thought that no attempt
should be made in defining such “privileges’ (see also House of
Commons Paper 164, 1939-40). In the year 1957, also similar
attempt was made but without any success. In 1967, the Select
Committee while reviewing the Law on parliamentary Privileges, went
to the extent of saying that the term - ‘Privilege’ is itself a misnomer
and recommended that the terms -should be substituted by the
words “rights and duties”; (see also House of Commons Paper 34,
1967-68), Para 11.
9. Dicey’s Constitutional Law, 10 ed. p. 58.
 5

The powers, privileges and immunities, are no doubt

different, 10 in the matter of their content. Thus the right of

the House to have absolute control on its internal

proceedings may be considered as its privilege; its right to

punish for contempt may be more properly described as its

power; while the right that no member may be liable for

anything said in the House may be really as immunity.

Since the term ‘privilege’ in the present work has been

used in parliamentary sense, therefore, for the sake of

convenience, all of them have been referred to as

‘privilege’. 11

By way of historical reference, the parliamentary

privilege was born in England as a part of law of

Parliament called ‘Lex-parliament’. The privileges attached

to Parliament are of ancient and historical origin. These

were originally part of king’s peace. The Commons, once a

weak body put a fierce and prolonged fight and struggle

10. The various words right, privilege, power and immunity have, i n
modern legal thought acquired distinct meanings. The exact
analyses of these basic legal concepts has been done by Hohfeld’s
which has been accepted by all modern Jurists. (See Hohfelds
Fundamental Legal Conceptions as applied in Judicial Reasoning
edited by W.W. Cook). See also Dias and Hughes’s, Jurisprudence,
1957, ed. pp. 258-59.
11. May has observed that the distinction between privilege and function
is not always apparent; for instance, the commons have certain
executive financial rights which are mo re of function than of
privilege. the more convenient course, therefore, is to confine the
term privilege to those Fundamental Rights only that are essential
for the successful exercise of each House of its Constructional
Functions (May parliamentary practice, p. 64).
6

against the crown and even the House of Lords and later

with the people themselves. The privilege, which originated

for the special protection of the King, began to be claimed

by commons as a customary right and its repeated

assertion ripened them into legally recognized privileges. 12

The Indian Legislatures enjoyed very limited privileges

under the Government of India Act 1919 and 1935. 13 But

when through the most peaceful revolution, India achieved

her independence, the people of India assembled together

in a Constituent Assembly to give themselves a

Constitution The system of parliamentary democracy was

adopted as the most suited to the country’s genius, ethos

and background as parliamentary democracy alone could

protect, sublimate and transcend into a higher purpose all

the various conflicting interests

Therefore, the privileges of the Indian Legislatures are

specifically mentioned in the Constitution itself. Articles

105 and 194 deal with the privileges of Parliament and

State Legislatures respectively. The wording of both the

Articles is para materia the same. Clause(i) and (2) of both

these Articles guarantees freedom of speech in Parliament

12. Encyclopaedia of Parliament, Norman and Laundry, p. 451 see also

Halsbury’s Law of England, 2nd ed., Vol. XXIV, pp. 345 -48.
13. Detailed treatment of evolution of privileges, will be discussed in
Chapter II.
 7

and immunity from civil and criminal proceedings to a

member in respect of anything said or done in Parliament

and also immunity to any person in respect of the

publication by or under the authority of either House of

Parliament in respect of any report, vote, papers or

proceedings. And for good or bad, the Constitution makers

tied the Indian Legislatures to the apron - strings of the

House of Commons in the matter of parliamentary

privileges. 14 The privileges of real significance were

specifically embodied and ensured in emphatic terms in

clause (1) and (2) of Article 105, 15 and for the rest, each

House of Parliament and State Legislature were left to sift

for themselves. The Constitution left them free to define

their privileges by law. But it is regretted that so far no

such law has been enacted.

1.2 HISTORICAL BACKGROUND

1.2.1 POSITION IN ENGLAND

The law of parliamentary privileges was born in

England as a part of General Law of Parliament called the

‘Lex-parliamenti’. The history of parliamentary privileges is

14. Articles 105 and 194. However by the Constitution (Forty Fourth
Amendment) Act, 1978, the reference to House of Commons has now
been done away with. The implications of this Forty -Forth
Amendment will be examined in Chapter III and VI and reference to
House of Commons still remains ine vitable.
15. Clauses (1) and (2) of Art. 194 provide similar provisions in respect
of State Legislatures.
8

to a great extent a story of the fierce and prolonged

struggle of Commons to win the rights and freedoms, which

they enjoy today. 16 The privileges of the House of

Commons, the Mother of Parliament, originated in the

ancient function of Parliament as the High Court of

Parliament.

Thus, the pageant of parliamentary privileges, which

has enlivened the pages of British history, goes back to the

fifteenth century. The House of Commons through the ages,

had to fight for its bare existence against the Crown,

against the House of Lords and against the King’s Judges

at different time. For such developments the House of

Commons had to fight hard, necessitating at one stage the

beheading of a King and abdication of another. 17

As a consequence the Commons were successful in

getting some rights and privileges. The privileges, which

were thus claimed, were claimed as customary rights. Even

now at the beginning of session of Parliament, it has been a

custom for Speaker to address a petition to the King

stating:

“In the name and on behalf of the Commons

to lay claim by humble petition to their

16. Norman and Laundry, Encyclopaedia of Parliament, p. 451.

17. Chatterjee, A.P; Parliamentary Privileges in India, 1971 ed. p. 1,
 9

ancient and undoubted right and privileges,

particularly that may be free from arrest

and all mole-stations that they may enjoy

liberty of speech in all their debates, they

may have access to Her Majesty’s royal

person whenever occasion shall required,

and that all their proceedings may receive

from her Majesty, the most favourable

construction.” 18

To the Speaker’s petition, the Lord Chancellor replies

on behalf of the Crown that “Her Majesty most readily

confirms all the rights and privileges which have been

granted to or confined upon the Commons by Her Majesty

or any of her royal predecessor”. 19 Thereafter, the Speaker

reports to the House that their privilege stands confirmed

by Her Royal Majesty.

The aforesaid invariable address of the Speaker before

the House of Lords at the beginning of each Parliament

underlines the origin of the Privileges of Parliament as the

Gracious Gift of the Sovereign, though both nature and

scope of such privileges have been changed beyond

recognition by centuries of struggle and fight with the

18. I.J. (1841) 571, also see May’s Parliamentary Practice, pp. 66 -67.
19. May’s Parliamentary Practice, p. 67.
10

Crown. The developments can be imagined from the

following facts. In the time of Henry IV, the only privilege

claimed by the Speaker was for himself, “that he might be

allowed to inform the King of the minds of Commons and

that if he made any error in doing so, it might be corrected

by reference to the House.” 20 In 1536, there was a definite

demand of access to the Crown, in 1541 came the demand

for the freedom of speech and in 1554, the three claims of

freedom from arrest, freedom of speech and of access were

first made together and thereafter from the end of sixteenth

century, the practice of making demands, as they are now

made in the address of Speaker, became regular. 21

Till lately, the Commons relied upon the King and the

House of Lords for the enforcement of their privileges. The

result was that these privileges were not often enforced The

King and the Lords were not always willing to protect the

Commons. In Thorpe’s case (1452) 22, not withstanding the

privilege, the House of Lords did not release Thorpe, the

Speaker of the House of Commons, who was arrested and

imprisoned under the execution from the Court of

Exchequer even the House of Commons applied for his

20. Ibid., p. 45.

21. May’s Parliamentary Practice, 18 ed. p. 70.
22. 5. Rot. Parl. 239 (1452). (Rotuli Parliamentarum).
 11

release and even though the Judges advised the Lords that

Thorpe was entitled to be released.

It was not until 1543, in what is now famous as

Ferror’s case, 23 that the Commons took upon themselves

the power to enforce their own privilege. George Ferror, a

member of the House of Commons was arrested in London

under order of the King’s Bench at the suit of one while as

surety for the debt of another. The Commons ordered his

release suo-moto without any reference to the Lords and

sent their sergeant to procure his release, the Commons

laid their case before Lords, Ferror was ultimately released

but Sheriff who had resisted the release of Ferror as well as

white were all committed for contempt. 24

Thus although the origin of the privilege was as a gift

from the King but in the course of struggle of the Commons

against the King and later with the Lords, these rights and

privileges became increasingly claimed as their undoubted

rights and privileges. 25

With the passage of time, parliamentary privileges in

England have been fast moving towards moderation. The

doctrine of privilege went a thorough and evolutionary

process, as must all hrn1an institutions with potentialities

23. Mays’s Parliamentary Practice, p. 71; see a lso I Homshed, 824.

24. May’s Parliamentary Practice, 18 ed. p. 71.
25. Ibid., p. 66.
12

for growth and development. In the course of time old

crudeness of struggle and sharp edge were rounded off as

Parliament became mature and ‘rule of law’ took, the place

of King’s prerogatives - A Great Development.

Now the Privileges of Parliament in the United

Kingdom are based partly upon customs and precedents

which are to be found in the Rolls of Parliament and the

Journals of the two Houses and partly upon certain

Statutes which have been passed from time to time for the

purpose of making clear particular matters wherein the

privileges claimed by either House of Parliament have come

in conflict with either the prerogative of the Crown or with

the rights of individuals. 26

1.2.2 POSITION IN INDIA :

The Constitution of India came into existence on 26 th

January 1950, vouchsafed for the first time a short Code of

Parliamentary Privileges. 27 It is not as if prior to coming

into force of the Constitution the concept of privileges was

unknown to India. The Government of India Acts 1919 and

1935 have indeed some provisions which lay down the

foundation of Parliamentary Privileges in India.

26. History Law of England, 2nd ed. Vol. XXIV, pp. 345 -46.
27. Art. 105 of the Constitution. Art 194 provide for the State
Legislatures, the same powers, privileges and immun ities.
 13

(i) Government of India Act, 1919

It does not appear that before the Government of

India Act, 1919; there was any Constitutional and

statutory recognition of the privileges. The Indian Council

Act, 1861, which established the first legislature in India

under direct control of British, did not confer any privilege,

power or immunity on the Houses of Indian Legislatures.

This state of law continued till the advent of the

Government of India Act 1919. It was under this Act that

qualified privilege of freedom of speech was conferred. The

relevant provisions prescribing the privilege of freedom of

speech were as under :

“Subject to the rules and standing orders

affecting the Council, there shall be

freedom of speech in both the Chambers of

Indian Legislatures. No person shall be

liable to any proceeding in any court by

reason of his speech or vote in either

Chamber or by reason of anything

contained in official report of the

proceeding of either Chamber.” 28

28. Section 24(7), Government of India Act, 1919.

14

The rules and standing orders to which the freedom of

speech was subject to, were the rules to be framed by

Governor General which provided for regulating the

business and preservation of the order in the Chambers of

the Indian Legislatures. 29 Again the Act provided that these

rules shall be made by the Governor-General- in-Council

with the sanction of the Secretary of State and shall not be

subject to repeal or alteration by the Indian Legislatures. 30

Thus it is evident from these provisions that the

privilege of freedom of speech then was ultimately subject

to the pleasure of the Governor General and Secretary of

the State. So the murmuring and dissatisfaction continued

until the Government of India Act, 1935 was enacted .

(ii) Govt. of India Act, 1935

The Govt. of India Act, 1935, no doubt made

substantial improvements upon state of affairs that existed

before, in respect of the privilege, power and immunity by

making certain provisions in the Act. The relevant

provisions, in respect of privileges of the Federal and

Provincial Legislatures were contained in sections 28 and

29. Ibid., 27(2).

30. Ibid., 44.
 15

71 respectively. The principal provisions in respect of

Federal Legislature were as under:- 31

Section 28(1) “subject to the provisions of this Act and

to the rules and standing orders regulating the Procedure

of the Federal Legislature, there shall be freedom of speech

and no member of the legislature shall be liable in any

proceeding 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

publication by or under the authority of either House of

Legislature of any report, paper, vote or proceedings”.

28 (2) In other respect, the privileges of the members of the

Chamber shall be such as may from time to time be

defined by Act of the Federal Legislature, and until so

defined shall be such as were immediately before the

establishment of Federation enjoyed by the members

of the Indian Legislatures.

28(3) Nothing in any existing Act, and not withstanding

anything in the foregoing provision of this section,

nothing in this Act shall be construed, on either

Chamber or on both Chamber’s sitting together, or

any Committee or Officer of the Legislature, the status

31. Sec. 71 of this Act made similar provisions for provincial

legislatures.
16

of the court, or any punitive or disciplinary powers

infringing the rules or standing orders, or otherwise

behaving in a disorderly manner.

28(4) Provisions may be made by any Act of the Federal

Legislature for the punishment or conviction before a

court, of persons who refuse to give evidence or

produce documents before a Committee of Chamber

when duly remained to do so by the Chairman of the

Committee.

28(5) The provision of sub Sec. (1) and (2) of this section

shall in relation to the persons, who by virtue of this

act have the right to speak in and otherwise take part

in the proceeding of the Chamber as they apply in

relation to members of the legislature.

Besides these provisions Sec. 38 of the Act made a

provision empowering each House to frame rules subject to

the provisions of Act to regulate its procedure and conduct

of its members. But the Governor General in his discretion

or in his individual judgment and several other matters

enumerated in the Act itself was empowered to make rules

for regulating the procedure of the business of each House.

 17

The rules thus made by the Governor General were to

prevail over rules made by the House. 32

Sections 28(3) and 71(3) expressly denied to those

legislatures the penal jurisdiction of the House of

Commons and sections 28(4) and 71(4) obliged the said

legislature to approach a court for punishing persons who

refused to give evidence or to produce documents before its

Committee. It thus denied the legislature the powers,

which House of Commons had exercised of committing a

refectory party for contempt. 33

But as the position was still very unsatisfactory and it

was almost universally acknowledged that rights and

privileges of the members and legislatures were very

limited. The Bihar Legislative Assembly by its resolution at

its meeting held on 17.5.1939 claimed more privileges and

reacted forcefully to the unsatisfactory state of affair in

respect of privileges. 34

The following words of Shri V.J. Patil president of the

Central Assembly will ring true for all times:

“….The House generally would recognized

the importance of protecting the honour

32. Pachauri, P.S., Law of Parliamentary Privileges in India and U.K.,

1971, ed. p. 308.
33. Seeravi, H.M. Constitutional Law of India, 1976, ed. Vol. II, p. 1169.
34. Bihar Legislative Assembly Bulletin, p. 128, 1957 ed.
18

and privileges of the legislators and unless

effective measures were provided by which

member could be assured of being able to

carry on their deliberations in the Chamber

without interference and molestation and

by which dignity of the legislature was duly

protected from outside attacks, it would not

be expected to function to the best ad

vantage”. 35

The Presiding Officers of Legislative bodies in India,

the President of Central Legislative Assembly, Sir Abdul

Rahim submitted a memorandum in 1938 to the Reform

Commission of Government of India for necessary

Amendment of Sections 28 and 71 of the Government of

India Act, 1935, pointing out that the Central and

Provincial Legislatures in India be given the same

privileges, powers and immunities as were enjoyed by the

Legislature in the Dominion and Colonies. 36

(iii) Independence Act, 1947

The provisions of the Government of India Act, 1935

were too ineffective and inadequate to uphold the dignity

and the rights and privileges of the legislatures in India

35. Ibid., p. 402.

36. F-1/38 notes of the Reforms Office, Government of India, 1938.
 19

and to safeguard rights and privileges of members and

officers therefore who feel entirely helpless against unfair

and malicious attacks of unscrupulous Outsiders and

Newspapers.

However, the position was altered by Independence

Act 1947, which continued provisions and powers for

adopting the Government of India Act, 1935 in the changed

circumstances till new Constitution was framed.

Consequently on the coming in the force of the Indian

Independence Act, on August 15, 1947 certain Indian

orders were passed by the Governor General to amend the

Government of India Act, 1935 in exercise of powers

conferred on him by clause(i)(c) of section 9 of the Act of

1947. The first of such orders 37 apart from other

amendment, deleted clause (3) and (4) of the section 28 of

Act, 1935 which had placed fetters on the law making

powers of the Central Legislature on the subject of its

privileges. This order was further Amended in 1948,

through Indian Provisional Constitution (3rd Amendment)

order 1948 38 by which in clause (2) of Sec. 28 of the Act

1935 the words “Members of the House of Commons of

Parliament of the United Kingdom” were substituted for the

37. Governor General Order No. 14 of 1947, se e Pachauri, Law of

Parliamentary Privileges in India and U.K. 1971 ed., p. 309.
38. Ibid., p. 310.
20

existing words “Members of the Indian Legislature.” Thus

in a way, the immunities of the members of the House of

the Indian Legislature were equated with those of

Commons in England. Though all the powers and privileges

of the House of Commons were not vested with the

Legislative Assembly as a body. No amendment was made

in section 71 on the same lines relating to the Provinces

and it was left unaltered and the status-quo, as it existed

under the Act of 1935 was maintained. No further

amendment took place as the Draft Constitution of India

had become known by that time. 39

The Draft Constitution of India in Article No. 85 had

proposed the privileges in the following form.

85(1) Subject to the rules and standing orders regulating

the procedure of Parliament, there shall be freedom of

speech in Parliament.

85(2) No members 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.

85(3) In other respect, the privileges and immunities of

members of the House shall be such as may from time

39. The Drafting Committee of the Constituent Assembly of India

submitted its report to Constituent Assembly in Feb. 1948, which
was published soon after.
 21

be defined by parliament by Laws, and until so

defined shall be such as are enjoyed by the member of

the House of commons of Parliament of UK at the

commencement of the Constitution.

85(4)The provisions of clauses (1), (2) and (3) of this Article

shall apply in relation to persons who by virtue of this

Constitution have the right to speak in, and otherwise

part in the proceedings of a House of Parliament as

they shall apply in relation to members of

Parliament. 40

These two Articles viz. 105 and 194 were not passed

by the Constituent Assembly without demur. Several

prominent members of the Consistent Assembly objected to

the Article on various grounds H.V. Kamath led the attack

when he stated that the reference made to in respect of

other privileges was neither necessary nor desirable when

the Constitution Assembly was specifically engaged in

giving ourselves a Constitutions and for such a reference to

the House of commons, when most of the members do not

know what are privileges of members of the House of

Commons, Sh. Kamath remarked:

40. In Draft Article, 169, Similar Provisions were contained which

related to the House of State Legislatures.
22

“…Does it add to the dignity of the

Constitution…? Will it not be for better, for

happier for us to rely upon our own

precedents, or our own traditions, here we

have, in India, than to import something

from elsewhere and incorporate it by

reference in the Constitution?” 41

Shibban Lal Sexena, another member -made a specific

suggestion that appendix containing the privileges of the

members should be appended as most of the members do

not know as to the privileges of the House of Commons are.

Naziruddin Ahmed was equally vehement and his attack

was even more gent, when he stated:

“The provisions of clause (‘3) of Art. 105 are

vague. The privileges and immunities, it

provides for are of the vaguest description

possible or imaginable... If a member who

wants to move about in his constituency

desires to know his rights, he will hove to

take the help of an English Attorney to

enlighten him.... I suggest that at the end

there should be added a Schedule. The

41. C.A.D., Vol. VIII, p. 144.

 23

rights and privileges of members should not

be left to be ascertained from text books of

English law.” 42

Sir Alladai Krishna Swami Ayyer, One of the

prominent members of the drafting Committee, defended

the provision as proposed in the Draft Article and added

that it was not possible due to lack of time to formulate all

the privileges in compendious form. The other reason put

forth by the member was that there was nothing to prevent

Parliament from setting up proper machinery for

formulating the privileges as the article leaves wide scope

for it. It is only a temporary phase, the member added that

the privileges of House of Commons are made applicable to

this House. 43

No such amendments were passed and Dr. Ambedkar,

the Chairman of Drafting Committee did not intervened

when privileges of House of Parliament were being

discussed. However, the matter was further, discussed and

debated when the corresponding provisions in respect of

Privileges of State Legislature 44 came for discussions before

the Assembly. It was H.V. Kamath again who led the attack

42. C.A.D., Vol. VIII, p. 147.

43. C.A.D., Vol. VIII, p. 148, see also C.A.D., Vol. VIII, p. 581, (Thakur
Dass Bhargawas attack).
44. These provisions are contained in Draft Act, p. 169.
24

and by that time the matter was also discussed in Press

and the Press was critical of the way in which the matter

was dealt with by Constituent Assembly. He reiterated its

earlier stand but added that if they were bent upon to

simplify it for the sake of brevity, then they should have

thought of this alternative by making a reference to a

written constitution of some other country and that would

not have been absolutely repugnant to him yet insisted on

recasting of the clause by omitting any such reference. 45

Naziruddin Ahmed picked up the thread and stressed

the need for appending an appendix as especially in the

midst of the difficulties when the privileges of the House of

Commons are now here collected in some systematic form

and in the light of these it is both necessary and desirable

not to postpone the matter any member even stated that he

had a ready Draft on privileges, which he would submit at

a suitable stage. 46

Dr. P.S. Desmukh Suggested that privileges of the

State Legislatures should be co-extensive to those enjoyed

by Parliament and it should be Parliament to define the

privileges as and when it is done because the privileges of

State Legislatures are likely to very. It is submitted that

45. C.A.D., Vol. VIII, pp. 579-80.

46. Ibid., pp. 580-81.
 25

this suggestion was very relevant, as it in unified Code of

Privileges. 47

On seeing, that members and even press was agitated,

Dr. Ambedkar intervened to state exactly what the

resources were for adopting such a course The reasons put

forth by him were mainly two, namely that it was not

possible to define what are the acts and deeds which

constitute the contempt and breach of privilege and

secondly he did not desire the long enumeration of

privileges as it would need another 20-25 relating to

privileges and immunities of Parliament. 48

It is submitted that the reasons advance by Dr.

Ambedkar, for not taking into account the suggestions of

other prominent legislators like Kamath and Desmukh are

not convincing for two reasons. Firstly that during the 60

years of working of Constitution, it has been demonstrated

that the interpretation of clause (3) of Article 105 and 194

has been the main root of confusion and controversy and

secondly the views expressed by Members of Assembly and

more, particularly by H.V. Kamath were ignored without

looking to its merits However, the Constitution [44 th

Amendment] Act. 1978 has removed the flaw in drafting

47. Ibid., p. 581.

48. Ibid., pp. 582-83.
26

this clause of the Constitution by omitting reference to

House of Commons.

Parliamentary Privileges in India

Privilege means a special right or acceptional right

enjoyed by a particular class of persons or individuals

which is not available to the rest of people. In the legal

sense it means exemption from some duty or burden to

which other are subject. In the content of Parliamentary

privilege means certain right and immunities enjoyed by

each house of Parliament and its committees collectively,

and by members of each house individually without which

they can not discharge their functions efficiently.

The object of the Parliamentary privilege is to

safeguard the freedom and dignity of the institution of

Parliamentary and its members. They are granted by the

constitution to enable them to discharge their functions

without any hindrance. But they are not exempted from the

general laws of the country as a citizen of the country

unless there is sufficient reason in the interest of

parliament itself. The fundamental principle is that all

citizens & including members of parliament should be

treated equally before the law. The privileges are available to

members only when they are functioning in their capacity as

 27

member of parliament and performing their parliamentary

duties.

The most important of the privileges, namely, freedom

of speech in Parliament and community to members from

any proceeding in any court in respect of anything said or

any note given by them are specially prouded in art 105 of

the constitution." 49 This article also provides community to

a person from any proceeding in any court in respect of the

publication by or under the authority of either house of

Parliament of any report, paper, votes or proceeding. 50

"Further the courts are prohibited to inquire into the

proceeding of parliament under art 122." 51

As regards other privileges, art 105(3) as originally

enacted provided that in other respect, the powers,

privileges and communities of Parliamentary, its committees

and members, until defined by Parliament by law, shall be

the same as those of house of commons of the United

Kingdom as on coming into force of the constitution on 26

Jan, 1950. This clause was however amended in 1978, to

provide that in respect of privileges other than those

specified in the constitution the powers, privileges and

immunities of each house of parliament its members and

49. Constitution of India.

50. Art 105 of the Constitution.
51. Parliamentary Procedure, Subash C. Kashyap, p. 1555.
28

committed shall be such as may from time to time be

defined by Parliamentary by law and until so defined shall

be those of that house, its members and committees

immediately before the coming into force of section 15 of the

constitution (44 th Amendment) Act, 1978 (w.e.f. 20 June,

1978). This amendment infact has made only verbal

changes by omitting all references to the British House of

commons but the substance remains the same. In other

words each house in actual practice shall continue to enjoy

the powers, privileges and immunities (other than those

specified in constitution) that were available to the British

House of commons as on 26 Jan. 1950. In other words, of

Parliament enacts any provision relating to any particular

privilege at any time, the English Precedents will to that

extent be superseded in its application to on parliament. 52

No such legislation having been made by on Parliament the

privileges are same as in the house of commons, subject to

such exceptions as necessarily follow from the difference in

the constitutional set-up in India. The British Parliament

has not codified its privilege so far. There privileges are

based on precedents and past practices opinions are divided

both in England as well as in India regarding the

52. D.D. Basu, Introduction to the Constitution of India.

 29

codification of Parliamentary privileges. Predominant is that

codification is more likely to harm the prestige and

sovereignty of parliament/State legislatures. 53

In this respect following observations made by Mr. H.

Hidayatullah, former Chief Justice of India and farmer vice-

president of India and Chairman of Rajya Sabha are

pertinent.

"It there is mutual trust and respect between

Parliament and the courts, there is hardly any need to

codify the law on the subject of privileges. With a codified

law more advantage will flow to persons bent on reflifying

Parliament, its members and committees and the courts will

be called upon more and more to intervene. At the moment,

given a proper understanding on both sides, Parliamentary

right to punish for breach of its privileges and contempt

would rather receive the support of courts then otherwise. A

written law will make it difficult for Parliament as well as

courts to maintain that dignity which rightly belongs to

Parliament and which the courts will always uphold as

zealously as they uphold their on.

53. Subhash C. Kashyap. Parliamentary Procedure, p. 1555.

30

1.3 Methodology :

As regards the methodical aspect of the study. It has

been based upon the method of desk research. The study is

organized to study the historical development of privilege in

U.K. and in India. Explanatory and Analytical approach has

been adopted to analyse the existing constitutional

provisions regarding parliamentary privileges. For finding

out the flaws in the existing legal provisions and the

functional problems which have been witnessed with regard

to exercise of privileges vis-à-vis the fundamental rights of

the citizens, the public opinion, functional experience and

judicial decisions have been studied. This has helped in

suggesting measures for preserving and protecting the

privileges of parliament within the limits prescribed in the

constitution. The tools of research used in this study are

constitutional provisions proceedings and debates of

parliament and state legislature, Reports of privileges

committees; law report and journals; and observations and

decisions by the chair.

1.4 Project of Study :

The chapters besides the introduction, are enumerated

as follows :
 31

Chapter II – privileges of members of parliament under

Indian constitution the main focus of this chapter has been

to list out the privileges which are available to the members

of parliament under the Indian constitution. Not only main

privileges has been considered but miner privileges available

to parliamentarians are also considered. Judicial review of

the privileges available to members of parliament has been

do0ne.

Chapter III : Privileges available to the parliament

under Indian constitution. In this chapter, the main thrust

is on to draw the list of privileges which are available to the

parliament itself. Not only main privileges but minor

privileges has been listed out with judicial review of the

privileges.

Chapter IV : Parliamentary privileges vis-à-vis

fundamental rights. In this chapter, main thrust is on to

solve the conflict between fundamental rights and

parliamentary privileges, various authentic judgments of

the courts has been discussed in this chapter and it has

been discussed in the chapter that who with prevail whether

fundamental rights over the parliamentary privileges or

privileges well prevail over fundamental rights.

32

Chapter V : Parliamentary Privileges in modern

changing scenario. In the chapter parliamentary privileges

in modern context has been discussed. Not only this but

why codification has been opposed of parliamentary

privilege has been discussed. What are the pros and cons.

Of codification of parliamentary privileges has been

discussed.

Chapter VI : conclusions and Suggestions. After the

study of the position of parliamentary privileges under the

Indian constitution, an attempt has been made to

summaries the conclusion which have emerged there form.

The basis for the grant of these privileges and its

significance in the democratic setup have been highlighted.

The debate regarding the codification of privileges has also

been discussed.

-----------------------------