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Codification of Parliamentary Privileges in India: An Unexplored Dimension of Law by Harshad Kapoor

The Author: Harshad Kapoor is a Law Student studying at Five Year Law College, Jaipur

INTRODUCTION

“The law is not only be devilled with uncertainty, at the best the archaic and arbitrary character of the law is offensive to modern thought. At worst it is a dangerous trap to the public outside Parliament we think the best solution of this problem will be to codify the law and practice relating to Parliament by statute or falling this by resolutions of the House of Commons.”[i]

Though the demand for codification of privileges is not new and since early 1950’s concerns have been raised, especially by the press, to remove the alleged arbitrariness prevailing in the exercise of privileges by the legislative bodies. Even the judiciary while deciding controversial matters relating to privileges, in its obiter dicta, has suggested such codification.[ii]

But before discussing the aspect of codification it is important to go through the current position of law regulating privileges.

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PRIVILEGE – DEFINITION AND SUBSTANCE

‘Privilege’ as defined in Webster’s Dictionary means an exemption by the virtue of one’s office or station, from burdens or liabilities to which others are subject: the privilege of a member of Congress.[iii]

Black’s Law Dictionary defines Parliamentary/Legislative Privilege as – the privilege protecting (1) any statement made in a legislature by one of its members, and (2) any paper published as part of legislative business.[iv]

The substance of conferring these privileges, collectively on the legislative bodies and individually on the members, was to enable them to act and discharge their functions effectively, without any interference or obstruction from any quarter. Through these privileges the Members of Parliament have been give somewhat wider personal liberty and freedom of speech than an ordinary citizen so that it may vindicate its authority, prestige and power and protect its members from any obstruction in the performance of their parliamentary functions.[v] Also, the privileges of the House have two aspects- 1) external: they refrain anybody from outside the house to interfere with its working, 2) internal: they also restrain the members of the House from doing something which may amount to an abuse of their position.[vi]

RELEVANT PROVISIONS RELATING TO PARLIAMENTARY PRIVILEGES

Article 105 and 194 of the Constitution of India confer privileges on Parliament and Legislative Assemblies as under:

  1. Powers, privileges, etc., of the Houses of Parliament 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 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, 1[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 is a verbatim reproduction of Article 105. Therefore, the privileges of a House of State Legislature correspond with those of House of Parliament[vii]and what is said about Article 105 applies mutatis mutandis to the State Legislatures as well.[viii]

PRIVILEGES EXPRESSLY DEFINED

The Constitution defines certain privileges expressly and leaves other privileges to be defined by the parliament and the legislative assemblies. This part deals with the express privileges defined under clause 1 and 2 of Article 105 and 194 of the Constitution.

  1. The scope of clause 1 of Article 105 and 194 is to confer freedom of speech on legislators independently of, and uncontrolled by, anything in Article 19(1) (a).[ix] This freedom of the legislators is, however, subject to two restrictions:
  2. Those provisions of the Constitution which relate to the procedure in the Legislature, e.g., Article 208, 211. Hence, in the exercise of his freedom of speech a member cannot raise a discussion as to the conduct of a Supreme Court or High Court Judge,[x] except when a motion for his removal is in consideration. However, the question whether a member has contravened Article 121 while speaking in the House is one for determination by the presiding officer of the House and not for the Court.[xi] The provision of 10th Schedule, Para. 2 (relating to anti defection) are not violative of Article 105(1) and 194(1).[xii]
  3. The rules and standing orders of the House in question which regulate the procedure in the House.[xiii] As the words ‘regulating the procedure of legislature’, suggest that the freedom of expression of members of legislature under Article 194(1) is subject to Rules of Procedure of the Legislature.[xiv]
  4. Clause 2 goes one step further than clause 1, in one respect, namely the legal liability of a legislature for anything said in the legislature.[xv] He will be completely immune from any legal proceedings even if his speech violates the fundamental right of any other person under Article 19(1) (a), even if he transgresses any other provision of the constitution, though he may be answerable to the House and the Speaker may take appropriate action.[xvi] The word ‘proceeding’ here means any proceeding civil, criminal or even writ proceedings.[xvii] The restrictive words “subject to the provisions of the Constitution….” at the beginning of clause 1 have been omitted from clause 2.[xviii] This immunity is complete and is based on the principle that it is the essence of Parliamentary system of Government that the people’s representatives should be free to express themselves without fear of legal consequences.[xix]

The words ‘anything said’ do not extend to anything which is said or done outside the walls of the House, except when these are spoken in essential performance of his duty as ministers,[xx] or to the questions which have been disallowed.[xxi] It can also not be contended that in order to be protected under clause 2, the offending words must have been relevant to the business of the House of Parliament or the State Legislature.[xxii] The immunity under this clause is confined to a publication by or under the authority of the House.[xxiii] A newspaper is not privileged under this clause even though its report be faithful, unless it has been authorized by the House.[xxiv]  It has been accordingly been held by the Calcutta High Court that the principle laid down in the English decision in Wason v. Walter[xxv], which protects unauthorized but faithful publication of the proceeding of the House, does not apply in India, as there is no exception for such publication in our law of Defamation.[xxvi] Even a member, who has absolute immunity for anything said within the House, has only a qualified privilege,[xxvii] if he causes his speech to be published in a newspaper, he would be liable for defamation if the publication actuated by malice.[xxviii]

But subsequently it was felt that there are many advantages which accrue on the community when a newspaper publishes reports of proceedings in good faith and accordingly Article 361-A[xxix] was inserted to pave way for such publications. But such immunity is available only to newspapers and air broadcasters and not to any other type of publication like a pamphlet or booklet.[xxx]

  1. Articles 118 and 208 authorizes legislature in India to make rules regulating its own procedure and conduct of business and Articles 122 and 212 provides that validity of any proceeding cannot be questioned in a court of law for procedural irregularity.[xxxi] The court would not interfere with the legislative process in a House either in the formative stages of law making, or with the presentation of the bill as passed by the House of Parliament to the President for his assent.[xxxii] While the courts do not interfere with the working of a House on the ground of irregularity of procedure, they may scrutinize the proceedings of the House on the ground of illegality or unconstitutionality.[xxxiii]

PRIVILEGES NOT EXPRESSLY DEFINED[Articles 105(3) and 194(3)]:

These constitutional provisions don’t enumerate the privileges comprehensively, it specifically defines only a few and for the rest assimilates the position of a House to that of the House of Commons, in an endeavor to confer the broadest privileges enjoyed by the House of Commons.[xxxiv] Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House, its members and Committees, they shall have all the powers, privileges and immunities of the House of Commons as at the date of the commencement of our Constitution. The ultimate object was that the privileges should be defined by law made by the Legislature. The powers, privileges and immunities of the House of Legislature are enumerated in entry 39 of List II of the Seventh Schedule to the Constitution just as Parliament has in entry 74 of List I of that Schedule, but no legislation has been enforced till date. However, the Constitution (44th Amendment) Act, 1978 made some cosmetic changes by omitting reference to House of Commons in Articles 105(3) and 194(3) but the substance remains the same.[xxxv] The members of the legislatures in India were intolerant of judicial interference with Parliamentary privileges, and that is why they preferred to be governed by the transitory provision in spite of the objective of the framers of the original Constitution to the contrary.[xxxvi] But as the expression ‘privileges of the British House of Commons at the commencement of the Constitution’ was a vague one the Supreme Court held that: (a) the courts have the power to determine that whether the House in fact possess a particular privilege and (b) whether any privilege existing at the commencement has become inconsistent.[xxxvii]

Some of the privileges enjoyed by House of Commons are as follows:

  1. Members of the House have freedom from civil arrest for a period of forty days before and forty days after the meeting of parliament.[xxxviii]
  2. The next important privilege of the House is the freedom of speech, debate and proceeding. These freedoms are so well established that it is difficult to realize that they were won after a hard and bitter struggle.[xxxix]
  3. Superiority of lex parliamenti over common law[xl]: The House could practically change or practically supersede the law, where the procedure of the House or right of its members to take part in proceedings was dependent on statute.[xli] In Rly. Board v. Pickin[xlii], Lord Simon observed: “I am quite clear that the issues would not be fairly tried without infringement of Bill of Rights and of general parliamentary privilege which is part of the law of land.” This privilege however is not vested in Indian Parliament.
  4. Privilege of excluding strangers from House and prohibiting publication of its debates and proceedings. Though the orders of the House prohibiting publication are still upon journals, reports of debates are tolerated in practice.[xliii]
  5. Inasmuch as the House has the exclusive jurisdiction over its proceedings, leave of the House is necessary for giving evidence in a court of law in respect of the proceedings in that House or committees thereof or for the production of any documents connected with the proceedings of that House.[xliv]
  6. The power to enforce the privileges and to protect itself from insult, indignity or obstruction is itself a privilege of the House and consists of a power to commit for contempt by a general or speaking warrant. This power of the House is criticized the most as it empowers the House to change into contempt just what it pleases,[xlv] which is evident in the cases of Stockdale v. Hansard[xlvi] and Sheriffs of Middlesex where the court compelled the Sherrifs to pay over the money, declared itself powerless to order their release.
  7. The power to commit for contempt has been exercised against magistrates and against judges of the superior courts.[xlvii] This privilege however is not vested in Indian Parliament.

 Also the courts had no power to grant bail to a person committed to jail by an unspeaking warrant of the speaker.[xlviii]

  1. A House has power to institute inquiries and order attendance of witnesses, and in case of disobedience, to bring witnesses in custody to the bar of the House.
  2. Neither House can create a new privilege.[xlix]

After distinguishing the unitary constitution of the United Kingdom in which Parliament is supreme, with the federal constitution of India in which neither Parliament nor the state legislatures are supreme, Gajendragadkar C.J. observed: “Thus the dominant characteristic of British Parliament cannot be claimed by a federal constitution like ours.”[l]

Sarkar J. observed in his opinion in the President’s Reference No. 1 of 1964,[li] ex facie there was no conflict between Article 19(1)(a) and 194(3) and principle of harmonious construction must be adopted and Article 19(1)(a) being a general provision, yielded to Article 194(3). It has also been held that once a privilege is held to exist, it is for the House to judge the occasion and its manner of exercise. The court cannot interfere with an erroneous decision by the House for the breach of its Privilege.[lii]

ARGUMENTS IN FAVOUR OF CODIFICATION

  1. It is to be noted that Article 105(3) is transitional in character and the Constituent Assembly contemplated that a statute would be made in due course after gathering sufficient evidence in this regard.
  2. The privileges of House of Commons are themselves under review as per a committee report[liii] which states that “there have been a number of other occasions since the Joint Committee on Parliamentary Privilege reported on which the extent or the operation of parliamentary privilege has come under discussion, all of which ought to be considered in the light of a general review. These include: a number of occasions on which Members of either House have used parliamentary privilege apparently to circumvent injunctions made by order of a court, which has led to reports from the Culture, Media and Sport Select Committee, by a special Committee on Super-Injunctions established under the chairmanship of the Master of the Rolls, and most recently by a Joint Committee on Privacy and Injunctions.”

One such report, published in 1999 by the United Kingdom Joint Committee on Parliamentary Privilege (hereafter, the ‘UK Joint Committee Report’) noted that the term labours under the disadvantage that the word privilege still carries a connotation of benefit or advantage unrelated to public need or duty… the very title is misleading and unfortunate’.[liv]

  1. Countries like Australia[lv] (including states like Victoria, Western Australia, Queensland, South Australia), New Zealand[lvi], USA, Canada have codified the privilege, but legislation concerning parliamentary privilege in all these jurisdictions often locates the privileges to be afforded to Members as defined by reference to the privileges at a particular time in the House of Commons.[lvii]
  2. The Second Press Commission[lviii] also held that “we are of the view that the rules of business of the House of Parliament and State Legislatures in India dealing with the procedure of taking action against alleged breaches of privilege, ect should be reviewed and necessary provisions incorporated therein to provide for a reasonable opportunity to alleged contemners to defend themselves in the proceedings for breach of privilege…”.
  3. Criminality:

“I know of no proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice” – STEPHEN J.

In the English case of R. v. Graham Campell[lix] also the court refused to convict the members of Kitchen Committee for selling liquor without a license in the precincts of the House of Commons. Basically the rule laid down is that “what is said or done within the walls of Parliament cannot be enquired into in a court of law.”[lx]

In the famous case of PV Narsimha Rao v. State[lxi], in which the ruling party members in order to survive a no confidence motion bribed few members of Jharkhand Mukti Morcha to vote against the motion, the constitutional bench by 3:2 held that: (a) the immunity under Article should be broadly interpreted and extended to this case, (b) the bribe givers can claim no immunity but bribe takers stand on different footing and (c) the member who took the bribe and did not vote can also not claim immunity. However, the minority held that the criminal liability of the members arise independently of making any speech or giving his vote by the member and cannot be regarded as a liability “in respect of anything said or any vote given in Parliament”.[lxii] On the lines of this judgment in the case of W.B. v. Shyamadas Banerjee[lxiii], the Supreme Court held that a special Judge cannot take cognizance of an offence against a member when he has ceased to be an MLA, though the offence was committed when he was a sitting MLA.

As per the case of Narsimha Rao discussed above, it is true that the house can hold a member accepting bribe for voting guilty of its contempt, but the house very limited penal powers. Another difficulty is that with the present politicization in the country, any action against a guilty member will become politicized, dividing the House on political lines.[lxiv] Also a member can be prosecuted for criminal liability after taking permission of the Chairman/Speaker of the concerned house[lxv], but speaker is a political creature and it is difficult to visualize the he would use this power in objective, impartial and non partisan manner.[lxvi]

  1. “The hallmark of an effective parliamentarian now seems to be the ability to shout and disrupt proceedings, preferably from the well of the House”[lxvii]

In terms of quality, the first Lok Sabha consisted of outstanding Parliamentarians. They were talented, accomplished and skilled in the art of Parliamentary debate. The debates and discussions on the floor of Parliament were of very high standard and quality. In terms of discipline, decorum and optimum utilization of Parliamentary time, it left behind an exemplary mark in Parliamentary history. More or less, the same type of healthy debate and discussion with an exemplary degree of Parliamentary discipline and decorum continued in the early Parliaments. But unfortunately, at present ‘healthy debate and discussions, the hallmark of Parliamentary democracy’ are overshadowed by disruption, confrontation, and forced adjournments of the house.[lxviii] The tendency to disrupt the proceedings of the House in order to force the Government’s hand on any issue has become common place in the region. As a result of such disruptions the business of Parliament cannot be completed in a timely manner resulting in delays and enormous wastage of public resources. Every working day lost due to disruptions must be duly compensated. Disincentives for disrupting House proceedings could be built into the system of allowances for MPs based on the principle of ‘no work no pay’.[lxix] In fact, recent occasions of interruptions during the address have not received the harsh criticism and scrutiny by parliamentarians and their committees, since these have become commonplace.[lxx] From 1952 to 1967, each of the three Lok Sabhas sat for an average of 600 days and more than 3700 hours. In comparison, the 15th Lok Sabha from 2009 till 2013 has met for 335 days and 1329 hours. In the 1st Lok Sabha, 49% of the total time was spent on debating legislation. This dropped to 28% in the 2nd Lok Sabha. In contrast, the 15th Lok Sabha has spent 23% of its time debating legislation.[lxxi]

  1. The problem faced by Speakers is that of diversity and competing demands. During the Nehruvian majority government era, when the opposition in total comprised only 107 seats, house management was primarily the task of the Minister for Parliamentary Affairs. With the increase in representation of other political parties and fall in the number of treasury members, house management became a shared responsibility. Today the largest opposition party comprises 116 seats in the Lok Sabha. There are a total of 38 parties in the 15th Lok Sabha, apart from independent candidates. In contrast, in the first Lok Sabha, there were 27 parties represented. With the increase in the multitude of parties, the time available to each party to represent its interests during discussions is reduced. The time spent on issues, which parties wish to move for discussions, increases, even when the number of sittings in Parliament has not increased proportionately. In fact, there has been a decrease in the number of annual sittings of Parliament. This aggravates the constraints faced by the members and the Speaker in prioritizing between matters. In the Lok Sabha, time is allotted by the Speaker to members on the basis of the strength of the party. This often means that smaller parties get a smaller chunk of the time to contribute to discussions in the House. This process can also come in the way of allowing members who are experts on a subject to speak. Other parliamentary democracies have found ways to foster expertise-based debates.[lxxii]
  2. Even though the speech of a member has been restricted by the rules and constitutional provisions, a person aggrieved by a speech of a member in the House has no remedy in the courts.[lxxiii] A derogatory statement made in the House regarding the judiciary does not amount to contempt even though in making such statements the provision of the Constitution is infringed.[lxxiv]
  3. Governments tinker with the dates of Parliamentary sessions for reasons of political expediency. For example, in India the United Progressive Alliance Government did not prorogue the winter session of Parliament held in December 2008 in order to escape the threat of a second no-confidence motion that was being planned by the opposition parties.[lxxv]
  4. Other Ambiguities: Where the appellant sought information about questions asked by MPs in the Rajya Sabha. The PIO denied this information claiming exemption under Section 8(1) (c) of the RTI Act. The contention of the PIO is that since the Secretariat has been delegated certain work the protection of the Parliament Privilege is extended to the secretariat. The Central Information Commission realized that there is no exact codification of Parliamentary Privilege. In view of this the Commission requested the Chairman of the Rajya Sabha to consider whether giving this information would be a breach of privilege of the Parliament.[lxxvi]

PROSECTIVE SOLUTION

As Evans notes, parliaments are usually reluctant to legislate for parliamentary privilege based on the concern that such legislation may unduly restrict the powers and immunities of the Houses of Parliament by tying them to precise legislative terms. Marleau and Montpetit note that it was thought better to rely on common law and the broad terms of old statutes, such as the Bill of Rights. For example, the United Kingdom parliamentary committees have conducted several reviews into the scope and application of privilege and have decided not to legislate the codification of privilege.[lxxvii] That even if the Indian legislature does not codify the privileges(for whatever reason) it may be worthwhile for a Parliamentary Committee to study the privileges of the legislatures in India and formulate some norms and guidelines for being followed by the various Houses in this area.[lxxviii] This approach ensures local control of the privileges while avoiding the automatic adoption of changes introduced for the House of Commons which are not necessarily appropriate for the Legislatures in India.

References

[i] H.C. Papers 36 (1967-68) Pachauri’s Law of Parliamentary privileges in U.K. and India, 1971 ed. p. 448

[ii] JUSTICE SUBBA RAO in SEARCH LIGHT I (Pandit M.S.M. Sharma v. Shri Krishna Sinha and ors., AIR 1959 SC 395) has strongly pleaded for codification of privileges instead of keeping “this branch of law in a nebulous state, with the result that a citizen would have to make a research into the unwritten law of privileges of the House of Commons at the risk of being called before the Bar of the Legislature”.

[iii] The New International WEBSTER’S COMPREHENSIVE DICTIONARY, Deluxe Encyclopedia Edition, 2004, p. 1004

[iv] Bryan A. Garner, BLACK’S LAW DICTIONARY, Deluxe Eighth Edition, 2004, p.1235

[v] MUKHERJEA, PARLIAMENTARY PROCEDURE IN INDIA, 350-407(1967); HIDAYATHULLAH, PARLIAMENTARY PRIVILEGES: PRESS AND THE JUDICIARY, 2 Jl. of Constitutional and Parliamentary Studies, I (April-June, 1968); DE SMITH, CONSTITUTIONAL AND ADMINSTRATIVE LAW, 316-322(1971); CAMPBELL, PARLIAMENTARY PRIVILEGE IN AUSTRALIA (1966); P. Sudhir Kumar v. Speaker, A.P. Legislative Assembly, (2003) 10 SCC 256.

[vi] JAGDISH SWARUP, CONSTITUTION OF INDIA, 2nd Edition, Volume 2

[vii] Professor MP Jain, Indian Constitutional Law, Sixth Edition Reprint , 2011, p.343

[viii] Ibid at p.91

[ix] Ref. under Article 143, AIR 1965 SC 745

[x] Sharma v. Sri Krishna, AIR 1959 SC 395

[xi] A.K. Subbiah v. Karnataka, Legislative Council, AIR 1998 SC 2120

[xii] Kihoto v. Zachilhu AIR 1993 SC 412

[xiii] Durga Das Basu, Shorter Constitution of India, 12th edition, 1999, p. 404

[xiv] Supra note ix

[xv] The immunity from legal liability for anything said in the parliament was established in Britain for the first time in 17th century in the famous case of Sir John Eliot(3 State Trials, 294) and afterwards it was incorporated in Bill of Rights, 1688.

[xvi] Supra note ix

[xvii] Supra note xi

[xviii] Supra note x

[xix] Tej Kiran v. Sanjiva, AIR 1970 SC 1573; Church of Scientology v. Jhonson-Smith, [1972] 1 Q.B. 522

[xx] DE SMITH, PARLIAMENTARY PRIVILEGE AND THE BILL OF RIGHTS, 21 Mod. L.R.,477-82

[xxi] Jatish v. Harisadhan, AIR 1961 SC 613

[xxii] Supra note xix

[xxiii] In the case of Stockdale v. Hansard (1839) L.J. (N.S.) Q.B. 294, a book written under the authority of the House containing defamatory matter was held to enjoy no privilege. As a consequence Parliamentary Papers Act, 1840 was passed which made the publications under the authority of the House privileged.

[xxiv] Surendra v. Nabakrishna, AIR 1958 Orissa 168

[xxv] LR 4 QB 73 (1868)

[xxvi] Suresh v. Punit, AIR 1951 Calcutta 176

[xxvii] Supra note xxi

[xxviii] C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132; Ramalingan v. Daily Thanthi, AIR 1975 Mad. 309

[xxix] Article 361- A enacts that no person shall be liable to any proceedings, civil or criminal, in respect of any publication of a substantially true report of any proceeding except secret sitting of the House.

[xxx] An act was first enacted in 1956, but was repealed in 1976 to curb the freedom of press in the wake of emergency. The Act was re-enacted in 1977 when emergency came to an end.

[xxxi] M.S.M. Sharma’s case(AIR 1960 SC 186); Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; State of Punjab v. Dang, AIR 1969 SC 903; Mangalore Ganesh Beedi Works v. State of Mysore AIR 1963 SC 589 ; Jai Singh v. State (AIR 1970 P&H 379; K.A. Mathialagan v. P.Srinivasan, AIR 1973 Mad. 37; S.V. Sirsat v. Legislative Assembly of State of Goa, AIR 1996 Bom. 10; Homi D. Mistry v. Nafisul Hassan, ILR 1957 Bom. 218; C. Subramaniam v. Speaker, Madras Legislative Assembly, AIR 1969 Mad. 10.

[xxxii] Bihar v. Kameshwar, AIR 1952 SC 252; K.P.K. Thirumulpad v. State of kerela, AIR 1961 Ker. 324; Hem Chandra v. Speaker, AIR 1956 Cal.378.

[xxxiii] Keshav Singh’s case, AIR 1965 SC 1186; A.J. Faridi v. Chairman, U.P. Legislative Council, AIR 1963 All. 75; Syed Abdul v. State of West Bengal Legislative Assembly, AIR 1966 Cal. 363; Om Prakash Chautala v. State of Haryana, AIR 1998 P&H 80; S. Ramachandran, M.L.A v. Speaker, AIR 1994 Mad. 332

[xxxiv] Supra note vii, p.91

[xxxv] Codification of Parliamentary Privileges in India – Some Suggestions, Dr K. Madhusudhana Rao*

(2001) 7 SCC (Jour) 21

[xxxvi] Supra note xiii, p. 598-600

[xxxvii] Keshav Singh’s case, AIR 1965 SC 1186

[xxxviii] H.M.Seervai, Constitutional Law of India, 4th ed., reprint 2013, vol. 2, p. 2156

[xxxix] Ibid

[xl] Article 9 – Bill of Rights

[xli] Bradlaugh v. Gosset, (1884) 12 Q.B. 271 ; Dingle v. Associated Newspapers Ltd., (1960) 2 Q.B. 405: Church of Scientology v. Johnson Smith, (1972) 1 Q.B. 522

[xlii] (1974) A.C. 765

[xliii] Supra note xl, p. 2158

[xliv] https://rajyasabha.nic.in/rsnew/rsat_work/chapter-8.pdf,  p. 215

[xlv] Howard v. Gossett (1847) 10 Q.B. 359

[xlvi] (1839) 9 Ad. & El. 1

[xlvii] The case of Brass Crossby (1771) 19 Howells State Trials, 1138, 3 Wills, 188; The case of Jay and Topham (1689) Howells State Trials, 821

[xlviii] Supra note xl, p. 2164

[xlix] Supra note xl, p. 2165

[l] (1965) 1 S.C.R. at pp. 444-45

[li] Ibid at p.413

[lii] M.S.M. Sharma’s case, AIR 1959 SC 359; Harendra v. Dev Kanta, AIR 1958 Assam 160

[liii] Parliamentary Privilege, Presented to Parliament by leader of House of Commons and Lord Privy Seal

by Command of Her Majesty, April 2012, p. 14, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79390/consultation.pdf

[liv] Rachel Macreadie and Greg Gardiner, An Introduction to Parliamentary Privilege, No. 2 August 2010, p. 12 (file:///C:/Users/Admin/Downloads/2010RPprivilege.pdf)

[lv] In 1987, the Parliament of the Commonwealth of Australia codified its privileges to reverse two judgments of the Supreme Court of New South Wales which restricted parliament’s privilege of freedom of speech.

[lvi] In section 242 of the Legislature Act 1908 the privileges held by the British House of Commons in 1865 are deemed to be applicable in New Zealand (the Legislature Act 1908 re-enacted the Parliamentary Privileges Act 1865). The Bill of Rights 1689 also forms part of New Zealand law by virtue of the Imperial Laws Application Act 1988.

[lvii] Rachel Macreadie and Greg Gardiner, An Introduction to Parliamentary Privilege, No. 2 August 2010, p. 38 (file:///C:/Users/Admin/Downloads/2010RPprivilege.pdf)

[lviii] Second Press Commission Report, I, 58(1972)

[lix] (1935) 1 KB 594

[lx] LORD COLERIDGE, C.J., IN Gossett, 12QBD 271 (1884)

[lxi] AIR 1998 SC 2120

[lxii] In 1972, in the U.S.A., the Supreme Court has decided in U.S. v. Brewster, (1972) 33 L.Ed, 2d. 507, by majority (6:3) that the charter of absolute freedom given to the members of the Congress cannot be regarded as a charter for corruption. It amounts to preventing the basic concept behind the charter of freedom. Member cannot sell themselves. However, the majority in Narsimha Rao case disregarded this view.

[lxiii] (2008) 9 SCC 45

[lxiv] Supra note vii, p.94

[lxv] Election Commission v. Subramaniam Swamy, AIR 1996 SC 1810

[lxvi] Supra note vii, p.94

[lxvii] Arvind P. Datar, “Debates in Parliament”, The Hindu, August 16, 2004, last accessed on August 29, 2013

at https://www.hindu.com/2004/08/16/stories/2004081600891000.htm.

[lxviii] Dr. Shridhar Charan Sahoo, Parliamentary Democracy in India – Looking at Recent Trends, Odisha Review, January 2012, p.11

[lxix] South Asians for Human Rights(SAHR), Transparency in Parliament: A review of the procedures and practices practice in South Asia, ISBN 978-955-1489-10-6, 2009, p.12

[lxx] Harsimran Kalra, DECISIONAL ANALYSIS AND THE ROLE OF THE SPEAKER, POLICY REPORT

  1. 1, 2013, p. 17

[lxxi] PRS LEGISLATIVE RESEARCH, Rethinking the Functioning of the Indian Parliament, 2013

[lxxii] Supra note lxx, p. 8-9

[lxxiii] Jagdish Gandhi v. Legislative Council Lukhnow, AIR 1966 All. 291

[lxxiv] Surendra v. Nabakrishna, AIR 1958 Ori. 168

[lxxv] South Asians for Human Rights(SAHR), Transparency in Parliament: A review of the procedures and practices practice in South Asia, ISBN 978-955-1489-10-6, 2009, p.12

[lxxvi] Smt. Anita Chhabra v. Parliment Of India on 24 May, 2011, https://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2012_000796_M_96277.pdf

[lxxvii] Rachel Macreadie and Greg Gardiner, An Introduction to Parliamentary Privilege, No. 2 August 2010, p. 37 (file:///C:/Users/Admin/Downloads/2010RPprivilege.pdf)

[lxxviii] Supra note vii, p.120

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