Parliamentary Privileges

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Classification

Parliamentary privileges can be classified into two broad categories:

1. those that are enjoyed by each House of Parliament collectively, and

2. those that are enjoyed by the members individually.

Collective Privileges

The privileges belonging to each House of Parliament collectively are:

1. In has the right to publish its reports, debates and proceedings and also the right to prohibit

others from publishing the same. The 44th Amendment Act of 1978 restored the freedom of the

press to publish true reports of parliamentary proceedings without prior permission of the

House. But this is not applicable in the case of a secret sitting of the House.

2. It can exclude strangers from its proceedings and hold secret sittings to discuss some

important matters.

3. It can make rules to regulate its own procedure and the conduct of its business and to

adjudicate upon such matters.

4. It can punish members as well as outsiders for breach of its privileges or its contempt by

reprimand, admonition or imprisonment (also suspension or expulsion, in case of members).25

5. It has the right to receive immediate information of the arrest, detention, conviction,

imprisonment and release of a member.

6. It can institute inquiries and order the attendance of witnesses and send for relevant papers

and records.

7. The courts are prohibited to inquire into the proceedings of a House or its committees.

8. No person (either a member or outsider) can be arrested, and no legal process (civil or

criminal) can be served within the precints of the House without the permission of the

presiding officer.

Individual Privileges

The privileges belonging to the members individually are:

1. They cannot be arrested during the session of Parliament and 40 days before the beginning and

40 days after the end of a session. This privilege is available only in civil cases and not in

criminal cases or preventive detention cases.

2. They have freedom of speech in Parliament. No member is liable to any proceedings in any

court for anything said or any vote given by him in Parliament or its committees. This freedom

is subject to the provisions of the Constitution and to the rules and standing orders regulating

the procedure of Parliament.26

3. They are exempted from jury service. They can refuse to give evidence and appear as a

witness in a case pending in a court when Parliament is in session.

Breach of Privilege and Contempt of the House

“When any individual or authority disregards or attacks any of the privileges, rights and  immunities, either of the member individually or of the House in its collective capacity, the  offence is termed as breach of privilege and is punishable by the House.”27  Any act or omission which obstructs a House of Parliament, its member or its officer in the  performance of their functions or which has a tendency, directly or indirectly to produce results  against the dignity, authority and honour of the House is treated as a contempt of the House.28  Though the two phrases, ‘breach of privilege’ and ‘contempt of the House’ are used interchangeably,  they have different implications. ‘Normally, a breach of privilege may amount to contempt of the  House. Likewise, contempt of the House may include a breach of privilege also. Contempt of the  House, however, has wider implications. There may be a contempt of the House without specifically  committing a breach of privilege’.29 Similarly, ‘actions which are not breaches of any specific  privilege but are offences against the dignity and authority of the House amount to contempt of the  House’.30 For example, disobedience to a legitimate order of the House is not a breach of privilege,  but can be punished as contempt of the House. 

Sources of Privileges

Originally, the Constitution (Article 105) expressly mentioned two privileges, that is, freedom of speech in Parliament and right of publication of its proceedings. With regard to other privileges, it provided that they were to be the same as those of the British House of Commons, its committees and its members on the date of its commencement (ie, 26 January, 1950), until defined by Parliament. The 44th Amendment Act of 1978 provided that the other privileges of each House of Parliament, its committees and its members are to be those which they had on the date of its commencement (ie, 20 June, 1979), until defined by Parliament. This means that the position with regard to other privileges remains same. In other words, the amendment has made only verbal changes by dropping a direct reference to the British House of Commons, without making any change in the implication of the provision.31

It should be noted here that the Parliament, till now, has not made any special law to exhaustively codify all the privileges. They are based on five sources, namely,

1.       Constitutional provisions,

2.       Various laws made by Parliament,

3.       Rules of both the Houses,

4.       Parliamentary conventions, and

5.       Judicial interpretations.