During the recently-concluded budget session of parliament, a lighthearted repartee about who, how and in what order of precedence members get the right to address the House brought up a substantive issue. For when MPs speak in parliament, they articulate the views of millions of their constituents, often on critical issues. To speak is to breathe.
So, what are the privileges of an MP provided for in the Constitution? Where does the power to frame the rules and procedures for conducting business in both Houses of parliament flow from? How did the office of the chairperson of the Council of States and the speaker of the House get created? What are the powers, privileges and immunities that the Constitution bestows on these august offices?
Article 93 creates the offices of the speaker and deputy speaker by election, while Article 64 provides that the vice president would be the ex-officio chairperson of the Council of States. Articles 89 to 97 about the officers of parliament and the procedure to appoint and remove them.
However, the Constitution only partially defines, that too spread over different Articles, the scope of the presiding officers’ powers. The roles of these constitutional functionaries are delineated more by convention, tradition, precedent, rules of procedure, directions for functioning, rather than by the Constitution itself. Conversely, Article 105, which deals with the powers and privileges of the Houses, their members and committees, is far more precise and expansive.
Essentially, it provides for four kinds of powers and privileges. The first is that, subject to constitutional provisions and parliamentary procedures, there shall be freedom of speech in parliament. Two words—constitutional provisions—refer to Article 19, which gives all citizens the right to freedom of speech and expression. Mind that the words ‘shall’ and ‘may’ have very different connotations in constitutional jurisprudence.
Second, MPs would be indemnified from proceedings in any court of law for anything said or done in parliament.
Third, the powers, privileges and immunities of parliament, its members and committees are the same as those available to the members of the House of Commons in the UK.
Fourth, all those persons who are constitutionally entitled to speak in the House or participate in its proceedings—for example, the attorney general, under Article 88—will have the same rights, privileges and immunities as enjoyed by the MPs. Under Article 118, parliament may frame rules for procedures to conduct its business, subject to constitutional provisions. Mark the word ‘may’ in this article, as opposed to ‘shall’ in Article 105(1).
Therefore, the question that needs to be determined is whether and to what extent, if at all, can the freedom of speech of MPs in parliament provided under Article 105(1) be circumscribed by provisions of the Constitution, and the rules made in pursuance of the power available under Article 118?
India follows constitutional supremacy instead of the British view of parliamentary sovereignty. The Constitution provides and delimits the power of all state organs. Parliament has legislative authority. However, it is not absolute. In addition to the Constitution itself, it is ring-fenced by the basic structure doctrine.
The Supreme Court ruled in Kihoto Hollohan (1992) that even anti-defection orders delivered by the presiding officers of legislative bodies are subject to judicial review, thereby underscoring that the powers exercised by presiding officers under the 10th Schedule are also not unfettered.
Furthermore, the court underlined in Raja Ram Pal (2007) that even parliamentary privileges are not free from examination, especially when they compromise democratic accountability or fundamental rights.
Parliament is, therefore, a creature of the Constitution under Article 79 and subject to its rigours.
As outlined earlier, Article 105(1) gives MPs the freedom of expression inside parliament, subject to certain caveats. This is a fundamental and inviolable constitutional right. The Rules of Procedure and Conduct of Business, promulgated under Article 118, only control everyday proceedings. At best, these rules are subordinate laws, if not bye-laws, rather than constitutional mandates. Therefore, Article 105(1)’s rights cannot be substantially constrained through procedural guidelines.
In constitutional hierarchy, Article 105’s clauses 1 and 3 have a better normative value. They have a direct constitutional provenance and form a part of the fundamental text passed by the Constituent Assembly, unlike parliamentary regulations promulgated under Article 118, whose remit is solely limited to conduct of business. Can procedural discretion trump legislative freedom provided by the Constitution? The answer is an obvious non sequitur.
The Supreme Court highlighted in Special Reference No 1 of 1964 that Article 105(3)’s powers have to be read in line with Articles 21 and 32. Renowned constitutional expert H M Seervai also underlined that rules made under Article 118 are procedural and cannot substantially define the scope of rights or privileges, unless authorised by the Constitution.
But our system continues to be in a state of inertia on the codification of parliamentary privileges. Article 105(3) originally stated, “The powers, privileges, and immunities shall be those of the House of Commons of the UK at the commencement of the Constitution, until defined by parliament”. That continues to be the case even today.
Rajendra Prasad had rightly apprehended during the Constituent Assembly debates that ‘the definitive moment’ may never arrive when these privileges are enacted into law. Other members such as H V Kamath and Alladi Krishnaswamy Iyer had also underscored the need for defining these privileges through law.
It’s time for a clear exposition of the constitutional position on the inherent jurisprudential tension between Articles 105(1) and 118, for this goes to the heart of the parliamentary remit to hold both the executive and the judiciary accountable within the four corners of the Constitution. It is also now imperative that a law clearly codifying parliamentary privileges in terms of Article 105(3) is enacted. It’s already 75 years too late.
Manish Tewari | Lawyer, third-term MP and former Union Minister of Information and Broadcasting
(Views are personal)
(manishtewari01@gmail.com)