Introduction
Parliamentary privileges, enshrined under Articles 105 and 194 of the Constitution, are derived from lex et consuetudo parliamenti to ensure the fearless, independent, and efficacious functioning of legislatures. However, unlike the sovereign British Parliament, Indian legislatures operate under the supremacy of a written Constitution. Consequently, the assertion that the legislature's power to punish for breach of privilege or contempt is absolute, unbridled, and unreviewable is constitutionally unfounded.
Constitutional Limitations on the Power to Punish
The punitive power of Indian legislatures for contempt or breach of privilege is circumscribed by clear constitutional and procedural limitations:
- Subjection to Judicial Review: In Raja Ram Pal v. Speaker, Lok Sabha (2007), a Constitution Bench established that legislative punitive action is not immune from judicial oversight. Courts can intervene on grounds of substantive unconstitutionality, gross illegality, perversity, mala fides, or violation of natural justice.
- Primacy of Fundamental Rights (Article 21): While the Supreme Court held in the M.S.M. Sharma (Searchlight) Case (1959) that privileges generally override Article 19(1)(a), the Special Reference in the Keshav Singh Case (1964) established that legislative powers to punish cannot abrogate Article 21 (Protection of life and personal liberty) or prevent an aggrieved citizen from approaching constitutional courts under Article 32 or Article 226.
- Adherence to Natural Justice: Disciplinary investigations undertaken by the Committee of Privileges must satisfy the requirements of procedural fairness and the rule against bias before sanctions or expulsions are imposed by the House.
- Express Constitutional Prohibitions: Legislative speech and debate are not unrestrained; Articles 121 and 211 strictly forbid discussion concerning the judicial conduct of Supreme Court and High Court judges in the discharge of their duties.
Overcoming the Claim of "Unbridled" Immunities
Recent jurisprudence has further eliminated ambiguities regarding the scope of legislative protections:
- Bribery Stripped of Immunity: In the landmark judgment Sita Soren v. Union of India (2024), a seven-judge Constitution Bench overruled the majority verdict in P.V. Narasimha Rao (1998), ruling that accepting a bribe to vote or speak inside the legislature is an offence against public probity that is neither essential to legislative discharge nor protected under Articles 105(2) or 194(2).
- Restriction of Arrest Immunity: The parliamentary freedom from arrest (40 days prior to, during, and after a session) is statutorily anchored in Section 135A of the Code of Civil Procedure, 1908, and extends solely to civil proceedings, conferring no immunity against criminal arrest or preventive detention.
The Codification Debate: Is It Time to Codify Privileges?
The framers initially left privileges open to statutory definition while referencing the conventions of the House of Commons. Whether these should now be codified involves competing constitutional arguments:
- Arguments for Codification: The National Commission to Review the Working of the Constitution (NCRWC) recommended formal codification to curb arbitrary invocation against journalists, dissidents, and citizens. Once codified into ordinary law, privileges become subject to Article 13(2), thereby subordinating them completely to Part III Fundamental Rights and eliminating ambiguity.
- Arguments Against Codification: Legislatures argue that codification would circumscribe legislative flexibility to handle unforeseen forms of disrespect or obstruction, inviting excessive and debilitating litigation over internal proceedings, thereby disrupting the separation of powers.
Conclusion
While uncodified privileges confer institutional flexibility necessary for dynamic parliamentary governance, they must strictly co-exist with constitutional morality and the rule of law. As demonstrated by the Supreme Court in the Sita Soren decision, active judicial review and progressive constitutional interpretation serve as robust bulwarks against abuse, ensuring legislative dignity without necessitating an inflexible statutory code.