This article has been written by Mr. Satyam Sah, a 3rd year law student of Bharati Vidyapeeth (Deemed to be University) New Law College Pune.
Introduction
Parliamentary privilege refers to a legal immunity or an advantage or a right given to specific group of people because of their position. The Indian Constitution borrows parliamentary privileges from the British Constitution. Articles 79 to 122 of the Indian Constitution include, among other things, the privileges of the member of Indian parliament.
The Member of Parliament and member of state legislatures typically have significant privileges to operate efficiently in a democratic country. Both houses of parliament are given the privileges necessary to function without interference or interruption and to operate effectively and efficiently. Article 105 and Article 194 talks about parliamentary privileges given to Member of Parliament and member of state legislature.
In this article we will study in detail parliamentary privileges with regard to Right of Publication of proceedings.
Provisions related to parliamentary privileges
Article 105: Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof-
(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) 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, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(3) 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 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.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
Article 194: Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof.-
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings 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 the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature 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 26 of the Constitution (forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
Article 105 of the Constitution specifies the rights, privileges, and immunities of either House of the Indian Parliament, as well as of its members and committees. The State Legislatures, their Members, and their committees are covered by Article 194 in terms of their rights, privileges, and immunity.
The language of Article 105 is “mutatis mutandis” identical to that of Article 194, with the exception that in Article 194 the term “state legislature” is used in place of the word “Parliament” in Article 105. A discussion of Article 105 would therefore also be pertinent to Article 194.Both articles expressly mentioned two privileges namely- freedom of speech and freedom of publication of proceedings.
- Freedom of Speech
Globally, the right to freedom of speech is regarded as one of the most significant inherent rights. This right is a fundamental one because it is granted to a person by birth. The right to hold and express one’s own opinion is a part of freedom of expression. Everyone has the right to express themselves and thought freely.
Article 105 clause (1) expressly safeguards freedom of speech in parliament. Furthermore, according to clause (2), no member of parliament shall be subject to legal action because of anything said or a vote cast by him in the parliament or any of its committees. There must be freedom of speech in parliament, according to the law. Freedom of speech and expression under Article19(1)(a) is not absolute but subject to some reasonable restrictions under Article 19(2) whereas freedom of speech mentioned under Article 105 is an independent right and is not subject to reasonable restriction under Article 19(2).
Clauses (1) and (2) of Article 105 protect what is said within the house and not what a Member of Parliament may say outside. Accordingly, if a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory. The freedom of the people’s representatives to speak their minds without concern for the cost of a lawyer is a fundamental component of the parliamentary system of government.
- Right of Publication of proceedings
As per Clause 2 of Article 105, no one shall be held accountable for publishing any reports, discussions, etc., of the house under the authority of the member of the house. It is crucial that the public be informed of the proceedings considering that these proceedings are of utmost and national importance and it is necessary that people are informed of what is happening in the parliament.
However, any incomplete report of a detached part of the proceedings or any publication made with the intention to harm is ineligible for protection. Protection is only provided if it accurately depicts the house’s actual proceedings. If any expunged proceedings are published or if there is misinformation or inaccurate reporting, it is considered a breach of the parliamentary privilege and an act of contempt of the house.
Also the (44th Amendment) Act of 1978, has given publishing immunity a strong foundation. It has added Article 361-A to the constitution.
Article 361-A provides that “protection of publication of proceedings of parliament and state legislature” under clause (1) of this article empowers that no person shall be made liable to any proceedings initiated against him, either civil or criminal in any court in regards to the publication made by him in any newspaper of a substantially true report of any proceedings of any house of parliament or the state legislature assembly, or as the case may be, unless the publication made by the member is proven to have been made with the malafide intention. Clause (2) provides that clause (1) will apply in relation to the right of publication of reports and protects it broadcast, not detached part of any proceeding of parliament through wireless technology, and part or any service which will broadcast by the member in any platform or station.
Case Laws
- Pandit M. S. M. Sharma v/s Shri Sri Krishna Sinha
In this case petitioner, was a renowned journalist and editor of the English newspaper ‘Searchlight’ which is published and circulated in the State of Bihar. Mr. Krishna Sinha, the respondent was holding the post of ‘Chief Minister’ of the State and the Chairman of the Privileges Committee of the Bihar Legislative Assembly. The issue involved in this case was whether the Constitution of India, under Article 194(3), empowers a State Legislative Assembly to restrict any publication of a proceeding that has been witnessed by its members or to prohibit the publication of the parts that has been directed to be expunged?
The court with a majority decision held that the notice to restrict the publication of proceedings stands valid.
- The State Of Kerala vs K.Ajith
In this case Dr. Chandrachud and M.R. Shah rejected the plea by the Kerala government to withdraw criminal cases against its MLAs, who destroyed public property and disrupted a Budget speech in the Assembly in 2015.The state had claimed parliamentary privilege and immunity from criminal prosecution, arguing that the incident occurred inside the Assembly hall.
They also said that prior sanction of the Speaker was necessary before the registration of an FIR by the police. But the SC held that legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution
Conclusion
All parliamentary privileges are important for the proper functioning of a democratic government. These privileges to Member of Parliament and member of state legislatures are necessary so that people’s representatives can express their views without fear of facing legal proceedings against them. Also the right of publication of proceeding is also important so that people will be aware of what is happening in the parliament. But the proceedings published must not be with malafide intention to defame the Member of Parliament.
It is the duty of the parliament not to violate any other rights which are guaranteed by the constitution. Additionally, the members should exercise caution while using these privileges.
References
- https://www.lawctopus.com/academike/parliamentary-privileges/
- https://www.legalserviceindia.com/legal/article-10016-parliamentary-privileges-vis-a-vis-right-of-publication-of-proceedings-a-critical-analysis.html
- https://blog.ipleaders.in/parliamentary-privileges-india/
- https://www.legalserviceindia.com/articles/parliamentary001.htm
- The Constitution of India
- M. P. JAIN, INDIAN CONSTITUITIONAL LAW (LexisNexis, 8th ed. 2019).
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