SYNOPSIS

“ SCOPE OF PARLIAMENTARY PRIVILEGES IN

INDIA- A STUDY IN CONSTITUTIONAL
PERSPECTIVE”

MENTOR
MR. P. PATHAK

STUDENT NAME
SONAL
LL.M – II
 Parliamentary Privileges: An Introduction

The privileges are provided to both the houses of parliament to work effectively
and efficiently and to discharge its functions without any kind of obstruction or
interference. The privileges are provided to each house collectively and to its
members independently.

Now, the question is: what we understand by “parliamentary privilege”?

As Dicey says, “is harder to define than the extent of the indefinite powers or
rights possessed by either House of Parliament under the head of privilege or
law and custom of Parliament”. As per Oxford dictionary[i] the term privilege
refers to the “special right, advantage or immunity to the particular person. It is
special benefit or honour”. Hence it can be inferred that the term privileges
referred to the special rights and advantages that are enjoyed by the members of
parliament over the citizen of India. Various authors throughout the world have
interpreted the word privileges according to the norms and scenario exists in
their respective country.

India in the case of Raja Ram Pal v Hon’ble speaker defined the term privilege
as “A special right, advantage or benefit conferred on a particular person. It is a
peculiar advantage or favour granted to one person as against another to do
certain acts”. Inherent in the term is the idea of something, apart and distinct
from a common right which is enjoyed by all persons and connotes some sort of
special grant by the sovereign. The word grant by sovereign refers the privilege
is conferred to them by the higher authority and the privilege an immunity is
derived from them only to such members. As inspired by the privileges of house
of the commons. The privileges of House of Commons have been defined as
“the sum of the fundamental rights of the house and of its individual members
as against the prerogative of the crown, the authority of the ordinary court of
law and the special rights of the house of lord”. Sir Erskin May[ii] states-
“Parliamentary privilege is the sum of the peculiar rights enjoyed by each
House collectively as a constituent part of the High Court of Parliament, and by
Members of each House individually, without which they could not discharge
their functions, and which exceed those possessed by other bodies or
individuals. Thus privilege, though part of the law of the land, is to a certain
extent an exemption from the general law. Certain rights and immunities such
as freedom from arrest or freedom of speech belong primarily to individual
Members of each House and exist because the House cannot perform its
functions without unimpeded use of the services of its Members. Other such
rights and immunities such as the power to punish for contempt and the power
to regulate its own constitution belong primarily to each House as a collective
body, for the protection of its Members and the vindication of its own authority
and dignity. Fundamentally, however, it is only as a means to the effective
discharge of the collective functions of the House that the individual privileges
are enjoyed by Members”. Sir Erskin, widening beautifully the scope of
Privileges with inducing the concept of Power and Immunities of the members
of parliament that exists in India too describes them as the necessity for
parliament to perform its function with impeded use of services of its members.
He considers it as the tool for collective discharge of its collective and
important function. Sankar J. in a particular case stated that the right of the
House to have absolute control of its internal proceedings may be considered as
its privilege. Sighted very rightly in the case of raja Ram Pal that “privilege
depends on the known laws and customs of Parliament”. Thus, the term
privilege is the special rights that are available in the different extent and in
various forms to the members of parliament throughout the world. These
privileges are important in order to enable the house to perform its functions
authorized to them by constitution and for proper conduct of business.

Objectives Of Research

The objectives keeping in mind which this research paper has been undertaken
are as follows:

a. To study the origin of Parliamentary Privileges in India;

b. To study the various legal provisions relating to the privileges;
c. To determine the laws of protection followed in India;

d. To study the laws of various countries relating to the privileges;

 Hypothesis
Concept of Parliamentary privileges was inculcated by the drafters of the
Constitution through the British Constitution. The objective was to immune
members from the hindrances so that they can carry out their work. In recent
times corruption scams and cases have shown that privileges are been used as
shield to guard members from the corrupt practices which they carry out inside
the Parliament. Neither Constitution nor the Prevention of Corruption Act, 1988
deals with this problem.

Research Methodology And Sources

The methodology adopted for this study is purely doctrinal and based on
primary and secondary data gathered from different sources including
Constitutional Provisions, Statutes, Constituent Assembly Debates,
Parliamentary Debates, Case Laws, Books, Law-Journals, Magazines,
Newspapers, Published-interviews and On-line Databases.

While using doctrinal method of research, I shall be placing reliance on various

books written by various jurists. At the same time, I shall also take into
consideration various articles published on my research topic. Reference shall
also been made to newspaper articles.

Abstract
This thesis analyses parliamentary privilege. The privilege is an ancient
parliamentary power. All of countries that have democratized or will soon have
democratized provide them by own constitution. The purpose of the
parliamentary privilege is to permit members of the legislature to speech freely
and express their opinion of political position, and not worry about retaliation
on the basis of political motives. The Parliament formulates itself its own rules
of procedure and maintains the discipline of parliament itself and so on, in order
to ensure that the parliament can independently, freely discharge of its duties
and perform its functions. Parliamentary privilege, however, is often
misunderstood by popular who believes that the privilege is the special
protection of all of the elites of society. That is ironic, because privilege was
originally produced as a whole of the protection of Parliament, and it protected
members of parliament from the elites at that time. It may be said that
parliamentary privilege is a special institutional arrangements based on the
principles of democracy. Compared with otherparliamentary powers, it is
special because it is the defensive power of Parliament rather than an offensive
power which the parliament must proactively exercise.

After studying on the foundation in the theory of parliamentary privilege, the

paper comprehensively discusses on the main elements of parliamentary
privilege, the problems at the practice of parliamentary privilege and the
development of privilege.

Chapter Plan Of Final Dissertation

CHAPTER 1: THE CONCEPT OF PARLIAMENTARY PRIVILEGE

(1) Definition Of Parliamentary Privilege.

(2) Origin Of Parliamentary Privilege.
(3) Justification Of Parliamentary Privileges .

CHAPTER 2 : RELEVANT PROVISIONS CONCERNING PRIVILEGE IN

THE INDIAN CONSTITUTION

1. Article 105 Powers, Privileges, Etc. Of The Houses Of Parliament And

Of The Members And Committees Thereof.

2. Article 194 Powers, Privileges, Etc., Of The House Of Legislatures And

Of The Members And Committees Thereof.-

CHAPTER 3: PRIVILEGES - A COMPARITIVE STUDY WITH OTHER

CONSTITUTIONS.

CHAPTER 4: THE MAIN CONTENT OF PARLIAMENTARY PRIVILEGE

 (1) Freedom Of Speech -Articles 105(1) And 194(1).
(2) Right Of Publication Of Proceedings- Articles 105(2),194(2) And 361-
A.
(3) Freedom from Arrest
(4) Right to Exclude Strangers
(5) Right to Prohibit the Publication of Proceedings
(6) Right to Regulate internal Proceedings
(7) Right to Punish for Contempt of the House
(8) Privileges And Fundamental Rights

CHAPTER 5 : PRIVILEGES AND JUDICIAL REVIEW.

CHAPTER 6 : CONCLUSION AND SUGGESTIONS.

Literature review:-
The existing literature on this research work mainly revolves around the
published works of Indian authors pertaining to the subject matter, the decided
and pending cases, Constituent Assembly and the articles published in the Law
journals. The researcher has made sincere efforts to fill the gap and lacunae in
the existing literature and suggested guidelines for making draft legislation
codifying the law of Parliamentary/Legislative Privileges as mandated under
Articles 105(1) and 194(1) of the Constitution.
Some other important sources are:-

Reference:-

a. Constitutional law of india. Dr. J. N. Pandey, published by central law

agency, 53rd edition 2016.
b. V.N. Shukla’s Constitution of india, eleventh edition, by M.P. Singh,
eastern book company.
c. M.P. Jain, Indian Constitutional Law, sixth edition.reprint 2012
d. Dr.K. C Joshi, The Constitutional Law Of India , central law
publications. Third edition 2016.
e. Dr. D.D. Basu, introduction to the constitution of india, vadhwa &
company.