Powers and privileges of Parliament of India

The Karnataka Legislative Assembly has found two journalists guilty of breach of its privilege and sentenced them to jail. This case once again raises the question of what should constitute privilege of the legislative bodies.

The Speaker authorized penal action for something that should have, at best, attracted admonition. While the sentencing is technically within the legislature’s powers, whether the framers of the Constitution envisaged ‘breach of privilege’ to lead to a prison sentence—a power usually exercised only by the courts—is open to question.

Constitutional provisions in this regard:

• The Indian Constitution specifies the powers and privileges of Parliament in Article 105 and those of State legislatures in Article 194. In brief, they:
• Provide freedom of speech in Parliament subject to other provisions of the Constitution and standing orders of the House.
• Give immunity for all speeches and votes in Parliament from judicial scrutiny.
• Allow Parliament (and State legislatures) to codify the privileges, and until then, have the same privileges as the British Parliament had in 1950.
• Till now, Parliament and State legislatures have not passed any law to codify their privileges.

What are the origins of the privileges?

• These are derived from the British House of Commons. The privileges are reported to have originated when a nascent British parliament was attempting to establish itself in the light of monarchy.
• “The legislatures in India claim to be the sole and exclusive judges of their privileges. This claim is based both on their status as coordinate organs of the state under the broad separation of powers among the executive, the legislature and the judiciary and their entitlement to all the privileges enjoyed by the British House of Commons on January 26, 1950.
• However, this claim is not supported by the constitutional scheme in India or by the situation in Britain in 1950,” a Supreme Court project on restatement of Indian law said in a publication on legislative privilege in India in 2011.

Privileges of Parliamentarians

a) 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.

b) Freedom from Arrest: It is understood that no 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.

c) Exemption from attendance as witnesses: The members of Parliament also enjoy freedom from attendance as witnesses.
Privileges of Parliament

a) 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.

b) 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.

c) Right to punish members and outsiders for breach of its privileges : In India, 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.

d) Right to regulate the internal affairs of the House: 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.
Judicial review of Parliamentary Privileges

The issue of Parliamentary privileges places judiciary and legislature at the loggerhead. On one hand Parliament claims absolute sovereignty in the matters of its privileges, while on the other hand, the Judiciary as a custodian of Indian Constitution do not admit any restraint on its power of judicial review.

The Judiciary shoulders the primary responsibility of protecting the fundamental rights of the citizens in India, and if any citizen comes to it claiming violation of the same, the Judiciary has to entertain his petition, even though it might be related to Parliamentary privileges.

The question of Parliament-Court relationship often arises in privilege matters.

This involves several postulates:

1. Who; whether the court or the Legislature, decides, whether a particular privilege claimed by a House exists or not?

2. When a privilege is held to exist, Is House the final judge of how, in practice that privilege has to be exercised?

3. Can the Courts go into the question of validity or propriety of committal by a House for its contempt or breach of privilege?

4. Can the Courts interfere with the working of the Committee of privileges?

Case of West Bengal

• The Speaker of the Assembly granted temporary permission to two communist M.L.As to remain on the Assembly premises in order to avoid arrest under the Preventive Detention Act. The court observed that general immunity cannot be conferred upon Members from arrest. The only immunity permitted by established practice in Britain is that the arrest cannot be effected within the precincts of the chamber when the House is actually sitting.
• In practice the legislature claims an absolute power to commit a person for its contempts and a general warrant, if issued by it, has a nature of conclusive and free from judicial scrutiny. The question however raised whether such a claim can be accepted in India which has written Constitution with fundament rights and doctrine of judicial review of legislative action as basic structure of the constitution.
• The Judiciary admits the fact that the Parliament is immune from its jurisdiction with regard to its internal matters, which itself is one of the necessary privilege of the Parliament. Though the Court has accepted this position in theory, in practice on various occasions judiciary has extended its adjudicators powers on the privileges of Parliament and State Legislatures.
• The Courts being the custodian of the Constitution and the fundamental rights of the citizens, were forced to decide the issues though, they were related to powers, privileges and immunities of the Parliament and concerned to internal proceedings of the Parliament.

What constitutes a breach of privilege?

While the Constitution accords special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of Parliament and the legislatures, these powers and privileges are not codified. There are no clearly laid out rules on what constitutes breach of privilege and what punishment it entails.

Concerns associated

• The Constitution confers certain privileges on legislative institutions with the idea of protecting freedom of speech and expression in the House and ensuring that undue influence, pressure or coercion is not brought on the legislature in the course of its functioning.
• Unfortunately, breach of privilege is invoked for the ostensible reason of protecting the image of the House on the whole or its individual members; too often, it is a thinly disguised mechanism to insulate elected representatives from criticism.
• Without a law codifying the legislative privileges, there is little merit in subjecting anyone, leave alone a journalist, to penal action for allegedly breaching a legislator’s privilege, unless there is a move or attempt to obstruct the functioning of either the House or its members.
• The problem also stems from the Constitution’s provisions on privileges and powers of the legislature. These provisions are loosely worded—Article 194 (3) states that “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”.
• It is sometimes used to counter media criticism of legislators and as a substitute for legal proceedings. All persons have a right to trial by a competent, independent and impartial tribunal. Breach of privilege laws allow politicians to become judges in their own cause, raising concerns of conflict of interest and violating basic fair trial guarantees.

Parliamentary Committees

The work done by the Parliament in modern times is not only varied in nature, but considerable in volume. The time at its disposal is limited.

It cannot, therefore, give close consideration to all the legislative and other matters that come up before it. A good deal of its business is, therefore, transacted by what are called the Parliamentary Committees.

Ad hoc and Standing Committees

• Parliamentary Committees are of two kinds: Ad hoc Committees and the Standing Committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report.
• The principal Ad hoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed for specific purposes.
• Apart from the Ad hoc Committees, each House of Parliament has Standing Committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc.

Other Committees

Of special importance is yet another class of Committees which act as Parliament’s ‘Watch Dogs’ over the executive.

These are the Committees on Subordinate Legislation, the Committee on Government Assurances, the Committee on Estimates, the Committee on Public Accounts and the Committee on Public Undertakings and Departmentally Related Standing Committees (DRSCs).

The Committee on Estimates, the Committee on Public Accounts, the Committee on Public Undertakings and DRSCs play an important role in exercising a check over governmental expenditure and Policy formulation.

Composition andfunctions of the Committees

Select and Joint Committees

• When a Bill comes up before a House for general discussion, it is open to that House to refer it to a Select Committee of the House or a Joint Committee of the two Houses.
• A motion has to be moved and adopted to this effect in the House in which the Bill comes up for consideration.
• In case the motion adopted is for reference of the Bill to a Joint Committee, the decision is conveyed to the other House requesting them to nominate members of the other House to serve on the Committee.
• The Select or Joint Committee considers the Bill clause by clause just as the two Houses do. Amendments can be moved to various clauses by members of the Committee.
• The Committee can also take evidence of associations, public bodies or experts who are interested in the Bill.
• After the Bill has thus been considered the Committee submits its report to the House. Members who do not agree with the majority report may append their minutes of dissent to the report.

Committee on Estimates

• This Committee consists of 30 members who are elected by the Lok Sabha every year from amongst its members.
• A Minister is not eligible for election to this Committee. The term of the Committee is one year.
• The main function of the Committee on Estimates is to report what economies, improvements in organisation, efficiency, or administrative reform, consistent with the policy underlying the estimates may be effected and to suggest alternative policies in order to bring about efficiency and economy in administration.
• From time to time the Committee selects such of the estimates pertaining to a Ministry or a group of Ministries or the statutory and other Government bodies as may seem fit to the Committee.
• The Committee also examines matters of special interest which may arise or come to light in the course of its work or which is specifically referred to it by the House or the Speaker.

Committee on Public Undertakings

The Committee on Public Undertakings consists of 15 members elected by the Lok Sabha and 7 members of Rajya Sabha are associated with it. A Minister is not eligible for election to this Committee. The term of the Committee is one year.

The functions of the Committee on Public Undertakings are—

(a) to examine the reports and accounts of Public Undertakings;

(b) to examine the reports, if any, of the Comptroller and Auditor General on the Public Undertakings;

(c) to examine in the context of the autonomy and efficiency of the Public Undertakings whether the affairs of the Public Undertakings are being managed in accordance with sound business principles and prudent commercial practices; and

(d) such other functions vested in the Committee on Public Accounts and the Committee on Estimates in relation to the Public Undertakings as are not covered by clauses (a), (b) and (c) above and as may be allotted to the Committee by the Speaker from time to time.

The Committee does not, however, examine matters of major Government policy and matters of day-to-day administration of the Undertakings.

Committee on Public Accounts

• This Committee consists of 15 members elected by the Lok Sabha and 7 members of the Rajya Sabha are associated with it. A Minister is not eligible for election to this Committee. The term of the Committee is one year.
• The main duty of the Committee is to ascertain whether the money granted by Parliament has been spent by Government "within the scope of the Demand". The Appropriation Accounts of the Government of India and the Audit Reports presented by the Comptroller and Auditor General mainly form the basis for the examination of the Committee.
• Cases involving losses, nugatory expenditure and financial irregularities come in for severe criticism by the Committee. The Committee is not concerned with questions of policy. It is concerned only with the execution of the policy laid down by Parliament and its results.

Business Advisory Committee (Lok Sabha)

• The Business Advisory Committee of Lok Sabha consists of 15 members including the Speaker who is the ex-officio Chairman.
• The members are nominated by the Speaker. Almost all sections of the House are represented on the Committee as per the respective strength of parties in the House.
• The function of the Committee is to recommend the time that should be allotted for the discussion of such Government legislative and other business as the Speaker, in consultation with the Leader of the House, may direct to be referred to the Committee.
• The Committee, on its own initiative, may also recommend to the Government to bring forward particular subjects for discussion in the House and recommend allocation of time for such discussions.
• The decisions reached by the Committee are always unanimous in character and representative of the collective view of the House. The Committee generally meets at the beginning of each Session and thereafter as and when necessary.

Committee on private members’ bills and resolutions (Lok Sabha)

This Committee consists of 15 members and the Deputy Speaker is its Chairman when nominated as a member of he Committee.

The Committee is nominated by the Speaker. The functions of the Committee are to allot time to Private Members’ Bills and Resolutions, to examine Private Members’ Bills seeking to amend the Constitution before their introduction in Lok Sabha, to examine all Private Members’ Bills

after they are introduced and before they are taken up for consideration in the House and to classify them according to their nature, urgency and importance into two categories namely, category A and category B and also to examine such Private Members’ Bills where the legislative competence of the House is challenged.

The Committee, thus, performs the same function in relation to Private Members’ Bills and Resolutions as the Business Advisory Committee does in regard to Government Business. The Committee holds office for a term not exceeding one year.

Rules Committee (Lok Sabha)

The Rules Committee consists of 15 members including the Speaker who is the ex-officio Chairman of the Committee. The members are nominated by the Speaker.

The Committee considers matters of procedure and conduct of business in the House and recommends any amendments or additions to the Rules of Procedure and Conduct of Business in Lok Sabha that are considered necessary.

Committee of Privileges (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker. The function is to examine every question involving breach of privilege of the House or of the members of any Committee thereof referred to it by the House or by the Speaker.

It determines with reference to the facts of each case whether a breach of privilege is involved and makes suitable recommendations in its report.

Committee on Papers Laid on the Table (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker.

Its function is to examine all papers laid on the Table of the House by Ministers (other than those which fall within the purview of the Committee on Subordinate Legislation or any other Parliamentary Committee) and to report to the House—

(a) whether there has been compliance of the provisions of the Constitution, Act, rule or regulation under which the paper has been laid,

(b) whether there has been any unreasonable delay in laying the paper,

(c) if there has been such delay, whether a statement explaining the reasons for delay has been laid on the Table of the House and whether those reasons are satisfactory,

(d) whether both the Hindi and English versions of the paper have been laid on the Table,

(e) whether a statement explaining the reasons for not laying the Hindi version has been given and whether such reasons are satisfactory,

(f) such other functions in respect of the papers laid on the Table as may be assigned to it by the Speaker from time to time.

Committee on Petitions (Lok Sabha)

The Committee consists of 15 members nominated by the Speaker.

A Minister is not nominated to this Committee. The function of the Committee is to consider and report on petitions presented to the House.

Besides, it also considers representations from individuals and associations, etc. on subjects which are not covered by the rules relating to petitions and gives directions for their disposal.

Committee on Subordinate Legislation (Lok Sabha)

The Committee consists of 15 members nominated by the Speaker. A Minister is not nominated to this Committee.

The Committee scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the Constitution or delegated by Parliament are being properly exercised by the executive within the scope of such delegation.

Committee on Government Assurances (Lok Sabha)

This Committee consists of 15 members nominated by the Speaker.

A Minister is not nominated to this Committee. While replying to questions in the House or during discussions on Bills, Resolutions, Motions etc., Ministers at times give assurances or undertakings either to consider a matter or to take action or to furnish the House further information later.

The functions of this Committee are to scrutinize the assurances, promises, undertakings etc. given by Ministers from time to time and to report to Lok Sabha on the extent to which such assurances etc. have been implemented and to see whether such implementation has taken place within the minimum time necessary for the purpose.

Committee on Absence of Members from the Sittings of the House (Lok Sabha)

The Committee consists of 15 members who hold office for one year.

The members are nominated by the Speaker. This Committee considers all applications from members for leave of absence from the sittings of the House and examines every case where a member has been absent for a period of 60 days or more, without permission, from the sittings of the House.

In its report it makes recommendations with respect to each case as to whether the absence should be condoned or leave applied granted or whether the circumstances of the case justify that the House should declare the seat of the member vacant.

Joint Committee on Offices of Profit

• This Committee consists of 15 members. Ten members are elected from Lok Sabha and five from Rajya Sabha. The Committee is constituted for the duration of each Lok Sabha.
• The main functions of the Committee are to examine the composition and character of the Committees appointed by the Central and State Governments and to recommend what offices should disqualify and what offices should not disqualify a person for being chosen as, and for being, a member of either House of Parliament under article 102 of the Constitution.

By Gudipati Rajendera Kumar