Seminar

Whether the legislature is the sole and
exclusive judge of its privileges ?
Amrita Rana
LLM(Business
Law)
2nd sem
Separation of powers
Three organs of the government –
Executiv
legislature judiciary
e
The Constitution does not give any unfettered power to
any organ and all the three principal organs are
expected to work in harmony.
Position accorded to Legislature in our
Constitution
The Legislature has been accorded a pre-eminent position in
our constitutional and political set-up, with powers inter alia,
- to make laws,
- to exercise control over the nation's purse,
- to make the Executive accountable to the popular
House, and
-when considered necessary, also to amend the Constitution.
But obviously the Legislature has to function within the

parameters laid down by the Constitution.
Parliamentary Privileges
- Article 105 of our constitution defines parliamentary privileges
of both Houses of Parliament and of their members and
committees. To enable Parliament to discharge functions properly
the Constitution confers on each member of the Houses certain
rights and immunities.
- In defining parliamentary privilege this article adopts certain
methods. Two privileges, namely,
freedom of speech and
freedom of publication of proceedings.
- The most important privilege of the House is the right of the
House to regulate its own procedure, free from intervention by
the Government or the Courts.
.
-CONSEQUENTIAL POWERS –
These powers are:
- To commit persons whether they are members or not, for breach
of privilege or contempt of the House;
- To compel the attendance of witnesses and
- To send for persons, papers and records;
- To regulate its procedure and the conduct of its business;
- Members or officers of the House cannot be compelled to give
evidence or to produce documents in Courts of law relating to the
proceedings of the House without the permission of the Speaker;
- Right of the House to receive immediate information of the arrest,
detention, conviction, imprisonment and release of a member;
- Exemption of a member from service of legal process and arrest
within the precincts of the House and prohibition of disclosure of the
proceedings or decision of a secret sitting of the House.
.
-.
- The Legislature concerned has the right to
take action against any erring member for acts
of impropriety or misdemeanor being
inconsistent with the privilege of a member
and even to terminate his or her membership of
the House by way of expulsion.
- The most important privilege of the House is
the right of the House to regulate its own
procedure, free from intervention by the
Government or the Courts.
Freedom of Speech
-The freedom of speech is subject to the rules of procedures
of a House, such as use of unparliamentary language or
unparliamentary conduct . Accordingly, if a member
publishes his speech outside Parliament, he will be held
liable if the speech is defamatory.
- Rule 353 of the Rules of Procedure provides that no

allegation of a defamatory or incriminatory nature shall be
made by a member against any person unless the member
has given adequate advance notice to the Speaker and also to
the Minister concerned so that the Minister may be able to
make an investigation into the matter for the purpose of a
reply.
.
-The aggrieved person can also make a representation

to the Committee of Petitions of the House placing all
the facts before it, and the Committee, after
examining the case in all its aspects, may make a
report to the House. It is open to the House to take
such further action as it deems fit.
- Even though we have not incorporated the right of
reply in our parliamentary system, we have ample
mechanisms to make sure that the citizens can bring
to the notice of the representative bodies their position
in respect of the allegations made against them
LAW COURTS AND PRIVILEGES
-The Supreme Court of India, in a landmark judgment in 1970,
(in the case of Tej Kiran Jain v. N. Sanjiva Reddy) reiterated
the immunity of parliamentary proceedings from judicial
interference in the following words:
The article [105 (2)] confers immunity inter alia in respect of
'anything said…in Parliament', the word 'anything' is of the
widest import and is equivalent to 'everything'. The only
limitation arises from the words 'in Parliament' which means
during the sittings of Parliament and in the course of
business of Parliament… . What they say is only subject to the
discipline of the rules of Parliament, the good sense of the
members and the control of proceedings by the Speaker. The
court have no say in the matter and should really have none.
.
-It is also agreed that the parliamentary power to punish for

contempt is more or less akin and analogous to the power
given to the Courts to punish for their contempt.
As in the case of contempt of court, our Parliament also acts

as the prosecuting as well as the adjudicating authority in
contempt proceedings. Though the Rules of Procedure do
not make provisions for giving opportunity to the person
who is alleged to have committed an act of contempt for
being heard before proceedings are finalized against him or
her, in practice, the parliament do allow, following the basic
principles of natural justice, such persons to make
submissions in their defence, before the Committee of
Privilege.
.
-For example, the jurisdiction to try a criminal

offence such as murder, committed even within
a House vests in ordinary courts and not in a
Parliament or in a State Legislature. Also, a
House of Parliament or State Legislature
cannot in exercise of any
supposed powers under Articles 105 and 194
decide election disputes for which special
authorities have been constituted under the
Representation of People Act, 1951 enacted in
compliance with Article 329.
.
One of our most eminent Judges, Chief Justice, S. R. Das,

in the famous case of A. K. Gopalan v. State of Madras
(1950 SCR 88) made it very clear:
Although our Constitution has imposed some limitations
… [it] has left our Parliament and the State Legislature
supreme in their respective legislative fields. In the main,
subject to limitations … our Constitution has preferred
the supremacy of the Legislature to that of the Judiciary…
and the Court has no authority to question the wisdom or
policy of the law duly made by the appropriate Legislature
… and this is a basic fact which the Court must not
overlook.
PARLIAMENTARY PRIVILEGES AND
FUNDAMENTAL RIGHTS
The Keshav Singh Case,
The court said “state legislatures in India could not by virtue of
Art 194(3) claim to be the sole judges of their powers and
privileges to the exclusion of the courts. Their powers and
privileges were to be found in Art 194(3) alone and nowhere else,
and the power to interpret that Article lay under the scheme of
the Indian Constitution, exclusively with the judiciary of this
country”.
If the legislatures step beyond the legislative fields assigned to

them, or acting within their respective fields, they trespass on the
fundamental rights of the citizens in a manner not justified by the
relevant articles dealing with the said fundamental rights, their
legislative actions are liable to be struck down by courts in India.
.
It is also a duty of the members to

properly use these privileges and not
misuse them for alternate purposes that is
not in the favour of general interest of
nation and public at large. Power corrupts
and absolute power corrupts absolutely.
For this not to happen under the privileges
granted, the public and the other
governing body should always be on vigil
.
THANK YOU

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Whether the legislature is the sole and

exclusive judge of its privileges ?

But obviously the Legislature has to function within the

- Rule 353 of the Rules of Procedure provides that no

-The aggrieved person can also make a representation

-It is also agreed that the parliamentary power to punish for

As in the case of contempt of court, our Parliament also acts

-For example, the jurisdiction to try a criminal

One of our most eminent Judges, Chief Justice, S. R. Das,

If the legislatures step beyond the legislative fields assigned to

It is also a duty of the members to

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