PARLIAMENTARY PRIVILEGES

 Parliamentary privileges have been defined by Sir Erskine May as sum total of the rights and immunities
which the Members of Parliament individually and the House collectively enjoy and which exceed what other
individuals or citizens have. And it is for this reason that they are called privileges.
 In other words, they are given to the members and to the legislative Houses to facilitate their efficient and
proper working.
 Privileges are given not to Parliament as it is technically defined but to the respective Houses of Parliament
 And India being a federation, the privileges are available to the legislative Houses and their members both at
the Central level and at the State level. This is provided in Articles IO5 and 194 in identical language.
 In clause (4) of each of the two articles it is further provided that they are also available to a few others as
well who are not Members of the House but have a "right to take part in the proceedings of the House or any
Committee" of Parliament or that of a State Legislature.
 This residuary category would include a Minister who is not a Member of the House, the Attorney General,
the Advocate General, a witness and others.
 As indicated above, the privileges can broadly be put into two categories-those which are specifically
mentioned in the Constitution and those which have been held to have been granted because similar
privileges have been available in England.

Freedom of Speech

Articles 105(1) and 194(1) in identical language provide:

(I) Subject to the provisions of this Constitution and to the rules and standing order regulating the
procedure of Parliament [the Legislature], there shall be freedom of speech in Parliament [the Legislature of
every State].
 Freedom of Speech obviously includes freedom of debate. It also includes asking of a question and
consultation among members for that purpose.
 In this respect the meaning of Parliament or a State extended to include legislators' residential flats where
this consultation may be held. But this would not include consultation with the constituents who may flock at
the house of the legislator.
 This would also not include letters written by a legislator to a Minister wherein he may have complained
against some officials of a public corporation which falls within Minister's area of responsibility.
 In principle it should also not include oral complaint made by a legislator to a Minister at Minister's
residence.
 Anything said by a legislator in the House while the House is transacting business is protected whether it is
relevant or irrelevant.
 It is not clear whether side conversation between two legislators in the House is included or not. In principle
it should not, but the letter of the law suggests otherwise.
 Freedom of speech so granted is limited by rules and standing orders regulating the procedure of the House.
Again, it is subject to such provisions of the Constitution as are meant to regulate the procedure of Parliament
or of a State Legislature.
 The relevant provisions are Articles 118 and 121 in the case of Parliament and Articles 208 and 211 in the
case of a State Legislature.
 Articles 118 and 208 respectively authorise the legislative Houses of Parliament and State Legislatures to
make rules to regulate procedure and conduct of business in the House.
 And Articles 121 and 211 provide that the conduct of a judge of the Supreme Court or that of a High Court
cannot be discussed in the House except when a motion for their impeachment is being debated.

Immunity from court proceedings

Clause (2) of each of the two articles, viz. Articles 105 and 194, in identical language provides:

No member of Parliament 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 Parliament [the Legislature] 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 [a House of such a Legislature] of any report, paper,
votes or proceedings.
 As a matter of fact, the privilege given in the second clause of the respective articles are a sequel of what has
been provided in the first clause. In the absence of this immunity the guarantee of freedom of speech would
have been an empty promise.
 The question is: what are its dimensions?
An important illustrative decision of the Supreme Court is Tej Kiran Jain v. N. Sanjiv Reddy, It was an appeal
against the decision of Patna High Court which had dismissed an action for damages against six Members of
Parliament for making allegedly damaging remarks against Shankaracharya who, it was alleged, had made
objectionable comments
on the issue of "untouchability". The Supreme Court dismissed the appeal. It is obvious that the members
enjoyed complete immunity under Article 105(2).
 But the decision of the Supreme Court in P.V. Narasimha Rao v. State127 is a little controversial. In this case
the allegation was that in order to save a minority government, which was facing a no confidence motion in
 the Lok Sabha, some Members of Parliament had been bribed. So there was a move to prosecute both the
bribe-takers and bribe-givers on a charge of corruption. There was no dispute on the point that bribe-givers
could be prosecuted. But, as far as the bribe-takers were concerned, the Constitution Bench of the Supreme
Court got divided 3 to 2. The majority took the view that those who were alleged to have taken the bribe and
had voted could not be prosecuted because clause (2) of Article 105 conferred on them the immunity
inasmuch as the clause protects a member not only for saying something but also for "any vote given" by him.
The minority gave the underlined words a restricted meaning so as not to include the taking of bribe before
the act of voting.

 One limitation on freedom of speech in a legislative chamber has already been noted, that it is subject to
rules which are meant to regulate the proceedings of the House.

 There is another limitation which is already been noted, that it is subject to rules which are meant to regulate
the proceedings of the House. There is another limitation which is implicit in the language of clauses (1) and
(2) of Articles 105 and 194.

 It is this that the right of speech, in respect of which immunity is given, is to be exercised within the House,
though by convention (developed in England)

 A Member of Parliament or that of a State Legislature cannot claim the same immunity for what he says
outside the House.

 If he repeats his own speech or gets it printed and distributes outside the House, he cannot claim any
immunity for that.

 In Jatish Chandra Ghosh v. Hari Sadhan Mukherjee the appellant, a member of the West Bengal Legislative
Assembly, had given notice to ask certain questions. But they were disallowed. He still got them published in
a local journal. What was published was defamatory of the respondents. In a prosecution that was launched
against him under Section 500 IPC he took the defence of parliamentary privilege. It was disallowed. A
Constitution Bench of the Supreme Court pointed out that even if it were part of the proceedings, it would
not have been accorded any immunity because on that date the Indian law did not confer any protection to
purely private publications. Here it was not even a part of the proceedings of the House as the questions had
been disallowed.

 However, part second of clause (2) of Articles 105 and 194 expressly accords absolute privilege to any
"publication by or under the authority of either House of Parliament" or that of a State Legislature, as the case
 may be, "of any report, paper, votes or proceedings". It is unnecessary to go into the history of the birth of this
privilege in England which the framers have expressly included in our own Constitution.
 As far as private publishers are concerned, the English common law confers qualified privilege on fair and
accurate reports of parliamentary proceedings published in a news-paper or through any other media channel.
 It was so decided in Wason V.Walter In India this was done by the Parliamentary Proceedings (Protection of
Publication) Act, 1956. But during the Emergency of 1975-77 it had been repealed. Now the protection has a
more secure base and the Constitution (44th Amendment) Act, 1978, has added Article 361-A in the
Constitution for this purpose. This article accords immunity against any civil or criminal proceedings in law
 361-A. Protection of publication of proceedings of Parliament and State Legislatures. -
(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a
newspaper of a substantially true report of any proceedings of either House of Parliament or the
Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the
publication is proved to have been made with malice. The publication of the proceedings of the secret
session of a House is excepted from this privilege. The privilege has been extended to include electronic
media and a news agency.

Internal autonomy
 If one looks at the history of the evolution of the powers and privileges of the House of Commons in England,
one is to find that the House has been as sensitive about its internal autonomy as about it say in the actual
governance of the country.
 If anything precipitated the final rupture between the Crown and the Commons it was the King's uncalled for
entry into the House to arrest the members who were said to have made the seditious speeches.
 Our constitutional system is equally careful to protect the internal autonomy of the legislative Houses. For
example, the powers of Parliament and State Legislatures are defined by the Constitution and courts can always
invalidate an Act which is ultra vires.
 However, they cannot prevent the legislatures or any of their Houses from considering a measure even if it is
beyond their power nor can a Minister be prevented from presenting a Bill which has been passed to the
executive head for his assent.
 The legislative procedure to a large extent has been laid down in the constitution. In addition, it
can be supplemented by each House in the form of rules. That power is conferred on the
Parliamentary Houses by Article 118 and on the Houses of State Legislatures by Article 208. The
Houses are free to suspend any of the rules whenever they think it to be appropriate.
 Under Article 122, it is also provided that the validity of the proceedings cannot be challenged for
any alleged irregularity and,
 No officer or Member of Parliament [of the Legislature of a State] in whom powers are vested by
or under this Constitution for regulating procedure or the conduct of businesses, or for the
maintaining order, in parliament (legislature) shall be subject to the jurisdiction of any court in
respect of the exercise by him of those powers.
 There is no scope for confusion in what has been stated so far. Still problems can arise and they
have been speculated below. It is always possible if we carry any matter to the extreme or to its
logical conclusion. Therefore, what is required is a balanced and pragmatic approach.
 For example, one ground of friction can be the conflict of jurisdiction between the enforcement
agencies which may claim jurisdiction over a crime which might have been committed within the
House and the claim of the House that it will settle everything that happens to take place within its
domain. The pragmatic solution is that law- enforcement agencies should not intrude into
legislative domain unless invited to intervene and that the House should always seek the
assistance of law-enforcement agencies in all those matters which amount to serious breaches of
the law of the land and/or which need thorough professional investigation.

Right against arrest

 On the pattern of the English rule in the matter, a Member of Parliament or that of a State
Legislature cannot be arrested for 40 days before the start of a session, during the session and for 40
days after the end of the session. But this is limited to civil arrest, e.g. arrest for non-payment of a
debt.
 It does not apply to arrest on a criminal charge including contempt cases, and arrest in cases of
preventive detention. But even in these cases the House concerned has to be kept informed through
its presiding office about the fact of arrest, the charge and other relevant matters related to the
arrestee. The arrestee will also have the right to communicate with the presiding officer of the House
directly.
Right to prohibit publication of proceedings
 In the past when this privilege was claimed in England, there were many reasons for motivating the
Members of the House of Commons to assert this privilege.
 On the top of everything was the fear of retaliation by the Crown against the members who could be
said to have been critical of the administration. Now the times have changed.
 The parliamentary system of government has ensured the presence of effective rulers in the House
itself. Moreover, this is the age of publicity. Most of the people possibly love to be watched on the
TV screen speaking in the House, and want to be read in the newspapers.
 There is a press gallery in every House where press correspondents regularly sit and report the
proceedings. More or less the same is the position in India and parliamentary proceedings are being
regularly televised live.
 All this satisfies the basic democratic urge of the people to know as to how the governing institutions
are functioning and how the people's representatives are performing. However, everything said here
is subject to two exceptions.
 One, legislatures, both in England and in India, have the right to call secret session from which
strangers, including the press to be excluded and the proceedings cannot be published so as to bring
it to the knowledge of any other person.
 Two, at times, portions of speeches of certain persons are expunged. Technically, this does not form
part of the proceedings. Therefore, the right of the media to publish the proceedings without any
liability under Article 361-A should be understood as not to include expunged portions. But this
editing is not possible in case of live telecast.
Right to exclude strangers
 Every House has the right to exclude strangers. Apart from secrecy which ceased to be a valid reason
now except in the case of secret sessions, there are constraints of space.
 Such persons also have to be kept out as against whom there are weighty reasons to believe that
they would abuse their presence may cause disturbance of the proceedings.
Power to punish for contempt
 This power can be said to be the keystone of all the privileges because it provides teeth to them. In
this connection there are two terms which are often used interchangeably. These terms are breach
of privilege and contempt of the House.
 It appears that the term breach of privilege is more appropriately said to have been committed
when a known privilege which is reasonably defined has been breached.
 On the other hand, contempt of the House is said to have been committed in the remaining cases
where someone has caused affront to the House by his conduct or utterance.
 And in a loose sense it is also used to include all cases of affront or insult including those which
amount to a breach of some known specific privilege.
 Culprits can be of both the varieties-outsiders as well as Members of the House. However, some
offences can be committed only by the members and some punishments can be meted out only to
the members.
 For example, it is only about a member that can be said that his conduct is unworthy of a Member of
the House, and it is only a member who can be suspended or expelled.
  In general, what hinders or obstructs the smooth functioning of the House, or which misleads the
House by giving it false information, or which undermines the prestige of the House or lowers
people's faith in it can be said to amount to contempt of the House. The punishment can range
between simple warning and imprisonment. It can also include fine.
 As stated earlier, members additionally suffer suspension and expulsion. But expulsion does not dis-
qualify the expelled member from seeking re-election. The punishment of expulsion has been given
both at the level of State Legislatures and also at the level of Parliament, in the latter case thrice so
far.

POWER OF PRESIDENT

APPOINTMENT OF THE PRIME MINISTER

 In the very nature of things, the Prime Minister has to be appointed by the President in the exercise
of his own discretion, because at that stage there is no Council of Ministers to aid and advise him.
 The proponents of the theory that the head of the State in every matter acts almost as an
automaton, argue that in the appointment of the Prime Minister it is the outgoing Ministry that gives
the advice.
 Another view is that when the new Prime Minister assumes office, he takes the responsibility for his
own appointment The first suggestion is on its face absurd, but the second may be of some relevance
in those rare cases where the head of the State has dismissed the Prime Minister and in his place has
appointed a new one.
 as far as India is concerned, the President is expected to exercise his own judgment and bear
responsibility for the exercise of his discretionary powers The exercise of the power to dissolve the
House of the People is one area where the Prime Minister will share the responsibility, if he has
advised the dissolution.
 Even here the President is not expected to accept the advice blindly and is supposed to have agreed
with the judgment of the Prime Minister. For the exercise of the other two powers, the President
alone is responsible.
 And if it is found that he has abused his discretion, he can be impeached for the same. Therefore, the
bald truth is that when he appoints someone as Prime Minister, he acts on his own responsibility and
exercises his own personal judgment and discretion.
 Article 75(3) says that "The Council of Ministers shall be collectively responsible to the House of the
People." This means that the Prime Minister should have majority support in the Lok Sabha
 Thus, when there is a definite party or combination of parties which has an absolute majority in the
House of the People and there is also a designated leader of that party or combination of parties, the
President has little choice but call that person to form the government.
 In addition, the Governor acts more as the nominee of the Central Government rather than as a non-
partisan executive head of the State Government Therefore, we can think of the development of
certain conventions only at the Central level in the hope that those conventions will have an impact
at the State level as well. At the Central level the problem came to be faced for the first time only in
late 1970s.


DISCRETIONARY POWER OF GOVERNOR

While discussing the position of the President we have seen that he has certain discretionary powers,
some of which he has on the pattern Of the British monarch in a parliamentary system of government
and a fee other flow from the nature of our constitutional too has all those powers. In addition, the
Governor has certain discretionary powers which are specifically enumerated in the Constitution. The
powers are of two types. A few are called discretionary and with regard to a few others the Governor is
said to be under special responsibility.

Governor is excluded, in the exercise of the second category of powers the Council of Ministers is
consulted, but the Governor is free to disregard the advice rendered by the Ministry. Still, there is a third
category where the very nature of the power suggests that it may have to be exercised against the
wishes of the Ministry. This means that the Governor has certain discre tionary powers also by necessary
implication. These three categories of powers are enumerated below:

1. The first category consists of the following powers

a) Under Article 239(2) the Governor of a State may be appointed as an administrator of an adjoining
Union Territory, and where he is so appointed, he will perform his duties as an Union Territory
administrator independently of his Council of Ministers

(b) Under Article 371-A(2)(b), (d) and (f) the Governor of Nagaland has been given discretionary power in
relation to the district of Tuensang so long as he acts as administrator of that district. These powers
relate to the: (a) equitable allocation to that district out of the total grant given by the Government of
India to the State of Nagaland; (b) making or regulations by him for the peace, progress and good
goverment of the district of Tuensang; and (c) general exercise of his discretion in all matters relating to
the administration of Tuensang District.
(c)Under Schedule VI of the Constitution there is provision for the creation of autonomous districts for
the administration of tribal areas in the States of Assam, Tripura, Meghalaya and Mizoram. In paragraph
9 of the Schedule it is provided that royalties earned every year from the prospecting for, or extraction of
minerals, from the licensees or lessees shall be shared between the State Government and the
Autonomous District Council concerned where the area prospected is located. Sub-para (2) of paragraph
9 provides that in case of a dispute about the share of the District Council, the decision shall be given by
the Governor in his discretion and his decision shall be final.

2. The following are the examples where the Governor has the special responsibility:

(a) Under Article 371(2) the President may direct that the Governor of the State concerned shall have
special responsibility:

(i) for the development of Vidarbha and Marathwada regions in the State of Maharashtra, and
Saurashtra and Kutch regions in the State of Gujarat;

(ii) for equitable allocation of fund for the above purpose and

(iii) for arrangement of technical education and vocational training and for adequate employment
opportunities service for the people of the above regions.

(b) Under Article 371-A(1)(b) the Governor of Nagaland has special responsibility for the maintenance of
law and order in that State for so long as in his opinion internal disturbance occurring in the Naga Hills
Tuensang Area immediately before the formation of that State continue therein or in any part thereof.

(c) Under Article 371-C the President may direct that the Governo of the State of Manipur shall be under
special responsibility tosecure the proper functioning of the Committee to be formedconsisting of the
MLAS of the State elected from the Hill Areas in the State

(d) Under Article 371-F(g) the Governor of Sikkim is under "special responsibility for peace and for an
equitable arrangement for securing the social and economic advancement of differ sections of the
population of Sikkim" and in discharge of this responsibility he is to act subject to any directions which be
may get from the President, in his discretion.

(e) Under Article 371-H(a) the Governor of the State of Arunachal Pradesh is under special responsibility
to maintain law and order until the President does not direct that it is no more necessary for the
Governor to have such special responsibility
(g) By amendments made in 1988 and 1995 in Schedule VI of the Constitution it has been provided that
the host of powers given to the Governor under different paragraphs and sub-paragraphs shall be
exercised by him in his discretion after consulting the Council of Ministers.

3. In the following cases, Governor's discretionary power arises by necessary implication:

(a) Under Article 356 the President has the power to declare President's rule in a State if he is satisfied
that the government of that State cannot be carried on in accordance with the Constitution. This
conclusion he can draw either from receiving a report to that effect from the Governor of the State or
from information received from any other source. As far as the Governor's report is concerned, it may
have many accusations of acts of commission or omission against the State Ministry itself. In the normal
course of business such a report can be conceived to be sent on the advice of the State Council of
Ministers, Such a report will be Governor's report based on his individual assessment of the situation

(b) When a State Bill is presented to the Governor for his assent, he, like the President, has the option to
accord or withhold his assent or to send a Bill other than a Money Bill for recon-sideration. In addition,
he has a fourth option. He may serve the Bill for the consideration of the President This fourth option he
may exercise both on the advice of the State Council of Ministers and in the exercise of his individual
discretion. There are express provisions in the Constitution like Articles 31-A, 31-C, and 304(b) which
stipulate that certain categories of State laws, in order to be valid, must receive Presidential assent.
Again, State laws in the Concurrent List can derogate from an earlier Central law provided they have
received Presidential assent. In all such cases the State Ministry itself will be anxious to get the Bill
reserved for the consideration of the President and may advise the Governor accordingly.

But there can be occasions when the Governor may have to exercise his discretion without the advice of
the Ministry or even against the advice of the Ministry. One such situation is mentioned in the provison
to Article 200. It says, that the Governor shall not assent to but shall reserve for consideration of the
President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the
powers of the High Court as to endanger the position which that Court is by this Constitution designed to
fill. Another situation would arise when the Governor is of the opinion that certain provisions of the Bill
are inconsistent with any provision of the Constitution.5 The controversy can be Anally resolved only
after getting an opinion of the Supreme Court under Article 143, a jurisdiction which can be invoked only
at the instance of the President. The Kerala Governor had reserved the Education Bill, 1957 for the
consideration of the President and the President in turn consulted the Supreme Court with regard to the
constitutionality of certain provisions of that Bill.