Parliamentary Privilege and Judicial Immunity

By: Adarsh Ranjan & Sonu Kumar

From

School of Law & Governance,

CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA (INDIA)

Email: adarshranjan.law@gmail.com

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 Introduction

Parliamentary Privilege and Judicial Immunity is too much debatable topic nowadays. Both
are similar in terms of its purpose. Parliamentary privileges and its immunities bear a special
mark of indebtedness to the centuries old conventions established and maintained in this
regard by the mother of the Parliament (British Parliament). In India, the concept of
Parliamentary Privilege is mentioned in Article 105 and Article 194 for the Parliament and
the State Assembly respectively. The purpose of the parliamentary privilege is to permit
members of the legislature to speak freely and express their opinion of political position and
not to worry about retaliation on the basis of Political Immunities. The purpose of
parliamentary privilege is very much similar to Judicial Immunity, which protects judges and
others employed by the judiciary from liability resulting from the judicial action. For
example, a judge is not liable for a slander or libel suit for statements made about someone
during a trail, no matter how corrupt that act was. It would be incorrect to say that, this
special right is enjoyed by certain members of the democratic country because these people
are the representative of entire mass. Various legal experts and authors across the world have
interpreted the word Privilege according to the norms and scenario exists in their country.
As per the Dicey view: it is harder to define than the extent of the indefinite powers or
rights possessed by either House of Parliament under the head of privilege or law and custom
of parliament. According to Sir T.F. May: Parliamentary privilege is some of the peculiar
rights enjoyed by each House collectively as a constituent part of the parliament and by
members of each House individually, without which they could not discharge their functions
and which exceed those possessed by other bodies or individuals.1

The prime question arises here is that whether parliamentary privilege and judicial immunity
is necessary for efficient working of parliament and court or not. It is a matter of debate due
to its corrupt practices and misuse in the context of India where the constitution is sovereign
and not parliament or any other institution. Generally, people confuse with the terms
privileges and facilities. Privileges are different from facilities which have been provided to
the Members of Parliament. For example, Government has given facilities to the Members of
Parliament to visit their constituency on the governmental vehicles. It comes under the
definition of facilities not under privileges.

1*. Sonu Kumar, B.A. LL.B. (Hons.), 4th Semester, Central University of South Bihar, (Gaya) Bihar.
** Adarsh Ranjan, B.Sc. LL.B. (Hons.), 4th Semester, Central University of South Bihar, (Gaya) Bihar.
May- Parliamentary Practice, Ch. 3. Page 42, 16th Edition.

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 Historical Background of Parliamentary Privilege

Parliamentary Privilege began to assume a coherent form on the constitutional landscape

by 1450, from when the speaker of commons began each session of parliament with an
address to the monarch claiming the ancient rights and privileges on the commons. The
scope of parliamentary privilege is both multi-faceted and uncertain. In broad terms, it
embraces such issues as the two Houses power to control their own procedures, to admit
and expel Members of Parliament and regulate their behaviour, and to punish non-
members for obstructing the houses business.2

Finally, in 17th century, free speech in parliament was at the centre of the political
demands and being asserted by parliament against the monarch. And it was given
statutory expression in Article- 9 of The Bill of Rights -1689, after the famous case of Sir
John Eliot. Article-9 of The Bill of Rights -1689 which talks about that of the freedom of
speech and debates or proceedings in parliament ought not to be impeached or questioned
in any court or place of parliament. Sir John Eliot was convicted by the court of Kings
Bench for seditious speeches made in the House of Commons. In order to the merits of
the Eliots case, The House of Lords reversed this decision on the ground interalia that the
words spoken in parliament should only be judged therein. Finally, the Bill of Rights-
1688 lay down that a member may say whatever he thinks proper within the House and
no action can be brought against him in any court for the same.

2 IAN LOVELAND, Constitutional Law & Administrative Law Oxford University Press, pg. 228 (6 th Edition).

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 Historical Background of Judicial Immunity

Historically, Judicial Immunity was associated with the English common law idea that The
King can do no wrong and compare sovereign immunity. Although it has a practical and
historical roots in the English common law but The doctrine of judicial immunity was
officially ushered into the American Legal System in the case of Randal v. Brigham3. In this
case, an attorney was accused of obtaining an agreement from a client that was
Unconscionable and Extortionate4. The Trial court, finding the actions of Randall to be
grossly unprofessional ordered that he be removed from his position an attorney.5

In response, Randall sued the judge Brigham for unlawful removal. 6 Now, Justice Field,
writing for the Supreme Court held that, Judges are not liable to civil actions for their judicial
acts, even when such acts are in excess of their Jurisdiction unless the acts are done
maliciously or corruptly.7

As we all know independent of judiciary is one of the essential elements of rule of law. Every
civilized society has seen the need for an impartial and independent judiciary. It would be
very difficult to define the judicial decision as wrongs and judges should be punished in
fact it is danger for independence of judiciary as well as democracy.

The Supreme Court of United State has made it clear that when judges perform judicial
functions, they are absolutely immune from money damages lawsuits. When judges act
outside their judicial function, such as in supervising their employees, they do not have
absolute immunity.

India is an aspirational democracy where individuals have diverse ideologies, cultures and
religious denomination so the independence of judiciary must be ensured. The Sapru
Committee Report 8 recommended that the justices of the Supreme Court and High Courts in
India should be appointed by the head of the State in consultation with the Chief Justice of
Supreme Court. The member of the constituent assembly envisaged the judiciary as a bastion

3 74 U.S. 523
(1868).
4 Randall, 74 U.S. 525.
5 ID. at 525 26.
6 ID. at 526.
7 ID. at 536 (Emphasis Added).
8 Granville Austin, The Indian Constitution Cornerstone of a nation., Page. 219.

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of rights and of justice.9 The justices of the Supreme Court who took the oath on 26 th January
1950 could not have imagined the controversies that awaited them, but they knew that high-
calibre judges and an independent judiciary were essential to the constitutions preservation.
The court should interpret the constitution with an enlightened liberality and administer the
law with Goodwill and sympathy for all said chief justice of India Harilal Kania after
taking his oath from the President Rajendra Prasad.10

Parliamentary Privilege is a Matter of Debate

There is no doubt that parliamentary privilege is a matter of debate because in one hand it
cannot deny that it is not essential for the efficient working of parliament. Although some
people believe that parliamentary privilege is the mechanism to suppress the voice of
freedom of media. On the other hand, its corrupt practices and misuse provoked a heated
debate not only today but also in the debate of constituent assembly. Several members
expressed their view as follows:-

As per the opinion of H. V. Kamath he said that;

I venture to state this is the first instance of its king where reference is made in the
constitution of a free country to certain provisions obtaining in the constitution of another
state. Is it necessary or desirable when we are drafting our own constitution that we should
lay down explicitly in an article that the provisions as regards this matter will be like those of
the House of Commons in England?11 Similarly, one another Member of Parliament K.T.
Shah, supporting Kamath and said: A Sovereign Legislature is the sole judge of the privileges
of its members as well as of the body collectively. Hence any breach thereof should be dealt
with by the House concerned.12 On the other hand, one senior member speaking on behalf of
the drafting committee Alladi Krishnaswami Aiyer countered these arguments and said;

I may share the sentiment but it is also necessary to appreciate it from a practical point of
view. It is common knowledge that the widest privileges are exercised by the members of the
parliament in England. The present legislature in India, according to judicial verdict has no
right to punish for contempt. The British Parliament has such powers. The Dominion
Parliaments too have such powers. Should we not have that power? .... If you have the time
9 Granville Austin, The Indian Constitution Cornerstone of a nation., Page. 218.
10 Granville Austin, Working a Democratic Constitution, Oxford India Paperbacks.
11 C.A.D. VIII, p. 144.
12 C.A.D. , p .145.

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and leisure to formulate all the privileges in a compendious form, it will be well and good.
The committee appointed by the speaker has found it extremely difficult. Under these
circumstances, I submit, there is absolutely no infra dig. We are having our Constitution in
English. Why object only to a reference to the privileges in England?

Need of Codification

This is very much unfortunate that after 70 year of the independence our parliament is still
following the same concept of Britain although it disrupts the basic fabric of our constitution.
Earlier House of Commons was a weaker institution and after a long struggle against crown,
it gets privileges but there is no institution like House of Lord or king in India. In other words
there is no need of protection against despotic monarch in India. Codification of
Parliamentary privilege is the immediate need of parliamentary democracy because it is
disrupting the constitutional scheme.

Without codification, judiciary cant solve such type of problems which is necessary for
healthy democracy. In the last decades, as we have seen that during session of the parliament
many of the members used to sleep, few members watched porn and most of the Members of
Parliament are not participating in any policy making by the government and so on, there is a
number of such kind of problems also we see in the session hour.

Is it comes under the parliamentary privilege?

It should be defined to prevent the misuse of parliamentary privilege. As we know, Truth is a

perfect defence to a charge of contempt of court. Indeed, it would be a public duty to bring
the relevant facts to light if the integrity of a judge is impugned. So, truth is equally perfect
defence to a charge of the contempt of the legislature in terms of sleeping, taking bribe,
watching porn or not raising any question. So, editor and media group cannot be punished in
the name of parliamentary privileges.

Is it supress the voice of freedom of Press?

The opposition claims that Member of Parliament try to suppress the voice of media on the
name of parliamentary privilege. As we all know, Freedom of Press is the arc of the covenant
of democracy because public criticism is essential to the working of its institution. The
weapons of propaganda are so strong and so subtle. When the Supreme Court of India

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delivered ringing words in the Newsprint Policy case in the year 1972. 13 It was perhaps
unconscious of the irony that it had itself created the gravest menace to press freedom by its
ruling in the searchlight case in the year 1958 that the privileges of legislatures, elected by the
people of India, override the fundamental rights of their matters, the people themselves.14

In the year 2008, the editor of an Urdu newspaper reported that the deputy chairman of
Rajyasabha (House of the State) had behaved in a cowardly manner while chairing the house.
The privilege committee held that editor guilty but decided not to punish the matter as his
intention was to get publicity.15 Now in modern era, most of the democratic country
understand the importance of codifications in parliamentary democracy and has taken the step
towards the codification. For example the country like Australia enacted its Parliamentary
privilege act-1987. It prescribes a maximum penalty of maximum one year imprisonment and
fine as per the statute. The Australian legislation prohibits the expulsion of any member from
membership of the house also, it abolishes contempt of defamation.16

Parliamentary Privilege and Fundamental Rights

It is very difficult to define the limit of parliamentary privilege and its scope practically. In
India, fundamental rights are the basic features of Constitution and it cannot be amend. To
understand the relation between fundamental rights and privileges, nothing is certain. It is up
to the judiciary to decide as per circumstances and on the basis of principle rule of law.

In the famous case of Gunpati Keshavram Reddy v. Nafisul Hasan17 and State of Uttar
Pradesh plaintiff Homi Mistry was arrested at his Bombay residence under a warrant issued
by the Speaker of Uttar Pradesh Assembly for contempt of the house and was flown to
Lucknow and kept in a hotel in speakers custody. On his applying for a writ of habeas
corpus, the Supreme Court directed his release as he had not been produced before a
magistrate within 24 hours of his arrest as provided in Article-22(2). This decision therefore
indicated that Article 194 or Article 105 was subject to the Articles under Part 3 of the Indian
Constitution. But after 4 year, one another case came before the court;

13 Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.

14 A.G. NURANI, Constitutional Questions in India, Oxford India Paperbacks, Pg,. 159.
15 Indian Express, 7th Sept.,2011
16 Articles by P.R.S. Team, M.R. Madhavan
17 AIR 1954 SC 636

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Pandit M.S.M Sharma v. Shri Krishna Sinha 18 popularly known as Searchlight case where
proceedings for the breach of privilege had been started against an editor of a newspaper for
publishing those parts of the speech of a member delivered in Bihar legislative assembly
which the speaker had ordered to be expunged from the proceedings of the assembly. The
editor in a writ petition under Article-32 contended that the House of Commons had no
privilege to prohibit either the publication of proceedings that took place in the House or of
that part of the proceedings which had been directed to be expunged. The Supreme Court by a
majority of four to one rejected the contention of the petitioner.

Das C.J, who delivered the majority judgment, observed that the House of Commons had at
the commencement of our constitution the power or privilege of prohibiting the publication
of even a true and faithful report of the debates or proceedings that took place within the
House. A fortiori the House had at the relevant time the power or privilege of prohibiting the
publication of an inaccurate version of such debates or proceedings, now if we analyse and
examine the relationship between the legislature and judiciary in terms of privileges then we
will get that, in India legislatures claim privileges in three situation.

When the constitution grants specifically.

It has been created by law of legislature.
It was enjoyed by the house under Article 105(3) or 194(3).

In Sharmas Case19, petitioner argued that the privileges of the House under Article 194(3)
are subject to the provision of part 3 of the constitution in support of his contention the
petitioner relied on the supreme courts decision in Gunpati Keshavram Reddy v Nafisul
Hasan and state of U.P.20 but the court held that in case of conflict between fundamental
right under Article-19(1) (a) and a privilege under Article 194(3) the latter would prevail.
After this judgement one question arises in the mind of common mass that is it more
important than fundamental rights?

Now Article 361A inserted by the 44th Amendment Act-1978 with effect from June 20, 1979
provides that no person shall be liable to any proceedings civil or criminal for reporting the
proceedings of either House of parliament or a state Legislature unless the reporting is proved
to have been made with malice. This provision does not apply to the proceedings of secret
sitting of the Houses.

18 AIR 1959 SC 395

19 AIR 1959 SC 395
20 AIR 1954 SC 636

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 Conclusion

After analysing all the merits and demerits of parliamentary privileges and judicial
immunities, researcher in a position to say that it is not absolute right. Parliament of UK is
sovereign but Indian parliament is subject to the Constitution. There is no need of such
protection from any despotic monarch in India. Therefore it must be codified to prevent all of
its corrupt practices and misuse. As far as judicial immunity is concerned, it is necessary to
protect the independence of judiciary as well as it is indirectly mentioned in under Section 77
of The Indian Penal Code-1860 but it is not absolute in nature. To maintain the rule of law
Judges Inquiry Act-1968, impeachment and much other process follow to prevent the tyranny
of Judges in the name of Judicial Immunity. . There is a clear demarcation as to what all
rights and privileges are absolute and what are not for example In India legislative assembly
and parliament never discharge any judicial function and their historical and constitutional
background doesnt support. As we all know power corrupts and absolute power corrupts
absolutely.

It is the responsibility of parliament and state legislature to codify this law properly. Seventy
years have elapsed since independence and the experience gained in the working of
constitution in this long period is sufficient to guide the process of codification of
Parliamentary Privileges. It is therefore excuse of legislature regarding enactment of practical
difficulties is totally irrelevant. The codification of parliamentary privilege in India should be
initiated at the earliest as otherwise it may become very difficult for us to fall back on this
ancient British practice which may not have any relevance in India today.

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