Under the constitutional law and in the arena of Indian Parliament, the expression “privilege and immunity” signifies certain special or exceptional rights of Lok Sabha or Rajya Sabha or its individual members which are generally accepted as necessary for the exercise of their constitutional functions.
To be stated precisely, parliamentary privilege is the sum of peculiar rights enjoyed by each House (the Lok Sabha or the Rajya Sabha) collectively as constituent part of Parliament, and by members of each House individually without which it would be impossible for either House to maintain its independence of action.
The privileges attached to the Lok Sabha or the Rajya Sabha not because of any exacted position of the members, but these are considered absolutely essential to regulate its own proceedings in a disciplined, efficient and undisturbed manner and in order to indicate its authority and dignity.
Privileges may be classified into two groups:
- Privileges that are enjoyed by the members individually and
- Privileges that belong to each House (Lok Sabha or Rajya Sabha) of the Parliament collectively.
The Parliament has not yet codified its privileges. In fact, the privileges rest on conventions and they may be ascertained by the practice and law that is in force In England.
- The Privileges and immunities enjoyed by the members individually:
- Freedom of speech,
- Freedom from arrest and
- Exemption from attendance as jurors and witnesses.
Freedom of speech:
According to the Indian Constitution, the members of Parliament enjoy 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.
The basic idea of extending this freedom being the necessity that every member would put forward without fear or favour his/her arguments for or against any matter before the House.
However, the Rules of procedure for the conduct of Business in the Houses of Parliament put certain restrictions on this freedom. That is, a member’s freedom of speech should be in conformity to the rules framed by the House to regulate its internal procedure.
Furthermore, the privilege of freedom of speech does not mean an unrestricted license of speech. For example, our Constitution forbids discussion in Parliament on the conduct of judges except on motion for their removal. In this connection, it may be pointed out that in India, there have been clashes between freedom of speech as guaranteed to the members of .parliament and fundamental rights as given to the people under Article 19 (1) (a) of the constitution.
Freedom from Arrest:
The members of Parliament also enjoy freedom from arrest. From this freedom it is understood that no such member shall be arrested in a civil case 40 days before and after the adjournment of the House (Lok Sabha or Rajya Sabha) 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. When a member of the House is arrested or detained, the authority concerned should immediately inform the speaker or the Chairman regarding the reasons for such arrest.
A member can be arrested outside the four walls of the House on criminal cases under the Preventive Detention, ESMA, NSA, POTA or any other such Act.
Freedom of attendance as witnesses:
The members of Parliament also enjoy freedom from attendance as a witness.
- Privileges of the House Collectively
There are also some other privileges which the House (Lok Sabha or Rajya Sabha) collectively enjoys. These are:
- The right to publish debates and proceedings:
Though by convention, the Parliament does not prohibit the press to publish its proceedings, yet technically the House has every such right to forbid such publication.
Again, while a member has the privilege of freedom of speech in Parliament, he has no right to publish it outside Parliament. Anyone violating this rule can be held responsible for any libelous matter it may contain under the common law rules.
- The right to exclude strangers:
Each House of Parliament enjoys the right to exclude strangers (no-members or visitors) from the galleries at any time and to resolve to debate with closed doors.
The punishment may be in the form of admonition, reprimand, or imprisonment.
- The right to punish members and outsiders for breach of its privileges:
The Parliament has been given punitive powers to punish those who are adjudged guilty of contempt of the House. Such contempt can be committed by the members of any House or any outsider.
When a member of the House is involved for parliamentary misbehavior or commits contempt he can be expelled from the House.
The right to regulate the internal affairs of the House: In Indian Union, each House is a High court of Parliament. Therefore, the House has the right to regulate its internal affairs. A member of the House is free to say whatever he likes subject only to the internal discipline of the House or the Committee concerned.
Breach of Privilege and Contempt of the House
A breach of privilege is a violation of any of the privileges of MPs/Parliament. Among other things, any action ‘casting reflections’ on MPs, parliament or its committees; could be considered breach of privilege. This may include publishing of news items, editorials or statements made in newspaper/magazine/TV interviews or in public speeches.
There have been several such cases. In 1967, two people were held to be in contempt of Rajya Sabha, for having thrown leaflets from the visitors’ gallery.
The punishment in case of breach of privilege or contempt of the House is that the house can ensure attendance of the offending person. The person can be given a warning and let go or be sent to prison as the case may be.
In the 2007 case of breach of privilege against Ambassador Ronen Sen, the Lok Sabha Committee on privileges held that the phrase “headless chicken” was not used by Shri Sen in respect of MPs or politicians. No action was taken against him.