The privilege of MPs does not extend to Criminal Cases
Polity & Governance
12th Aug, 2022
Recently, the Rajya Sabha Chairman made the clarification in the House that “Members of Parliament do not enjoy any immunity from being arrested in a criminal case during the Session or otherwise.”
- The chairman’s observation came a day after Congress leader of house Mallikarjun Kharge raised the issue in the House that he was summoned by the Enforcement Directorate when the session was on.
What are parliamentary privileges?
- Parliamentary privileges are special rights, immunities, and exemptions enjoyed by the two Houses of Parliament, their committees, and their members so that they can “effectively discharge their functions”.
- 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,
- Constitutional provisions
- Various laws made by Parliament
- Rules of both the Houses
- Parliamentary conventions
- Judicial interpretations.
Who has the entitlement to such privileges?
- Other than members of Parliament and members of the state assemblies, the Constitution has also extended parliamentary privileges to those persons who are entitled to speak and take part in the proceedings of a House of Parliament or any of its committees. These include the attorney general of India and Union ministers.
- It must be clarified here that the parliamentary privileges do not extend to the president who is also an integral part of the Parliament. Article 361 of the Constitution provides for privileges for the President.
Classification of Parliamentary privileges:
- those that are enjoyed by each House of Parliament collectively, and
- those that are enjoyed by the members individually.
Constitutional provisions for such Privileges:
- The Constitution (Article 105 for Parliament and Article 194 for State Assemblies) mentions such privileges.
- Article 105: Under Article 105 of the Constitution, Members of Parliament enjoy certain privileges so that they can perform their parliamentary duties without let or hindrance.
- Important Note: Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talk about freedom of speech. Article 105 applies to the members of parliament not subjected to any reasonable restriction. Article19(1)(a) applies to citizens but is subject to reasonable restrictions.
Reason for this special right: The reason behind giving parliamentarians a special right to speech was that Article 19 contains some reasonable restrictions but it was observed by the court in the case of Tej Kiran Jain & Ors v. N. Sanjiva Reddy & Ors that Art. 105(3) confer immunity, in respect of anything said in Parliament. The word 'anything' is of the widest import and is equivalent to 'everything'. Therefore, this article gives the parliamentarians immunity to say anything without any restrictions.
- Freedom of Speech: The members of Parliament/state assembly enjoy the freedom of speech and expression. No member can be taken to task anywhere outside the four walls of the House (e.g., court of law) or cannot be discriminated against for expressing his/her views in the House and its Committees.
- Freedom from Arrest: No member shall be arrested in a civil case 40 days before and after the adjournment of the House and also when the House is in session. It also means that no member can be arrested within the precincts of the Parliament without the permission of the House to which he/she belongs. This privilege is also incorporated under Section 135A of the Civil Procedure Code, 1908.
- Exemption from Attendance as Witnesses: The members of Parliament/ assemblies also enjoy freedom from attendance as witnesses.
- Right to Publish Debates and Proceedings: Parliament/Assembly can prohibit the press to publish its proceedings when needed.
- Right to exclude strangers: The object of including this right was to exclude any chances of daunting or threatening any of the members. The strangers may attempt to interrupt the sessions.
- Right to Punish Members and Outsiders: In India, the Parliament/Assembly has been given punitive powers to punish those who are judged guilty of contempt of the House.
Important judgments on Parliamentary Privileges:
- K Anandan Nambiar case: The Supreme Court of India held that a Member of Parliament can claim no special status higher than that of an ordinary citizen and is as much liable to be arrested, detained, or questioned even during the Session.
- State of Kerala Vs K. Ajith and Others: The Supreme Court has observed that “privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”
Ruling by the Presiding Officer: Dr. Zakir Hussain in 1966 mentions that, “Members of Parliament do enjoy certain privileges, but freedom from arrest is limited only to civil cases”.
Significance of Parliamentary Privileges:
- Ensures independence and effectiveness of the actions taken by them.
- Secure the members of the houses from any obstruction in their discharge of actions.
- Help to maintain the dignity, authority, and honor of the members of parliament.
There is an urgent need for codifying privileges and giving primacy to a citizen’s right to free speech over legislative privileges. Also, legislators should act within the parameters of the public trust imposed on them to do their duty. It is now high time for the legislature which is responsible for making laws for the people of our country to make a law for themselves. The legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.