Q2. (a) What are the powers, privileges and immunities of Houses of Parliament in India? Do they have the power to expel any of their members for breach of privileges? If so, are such expulsions subject to judicial review? Discuss.

The Parliament of India, as the supreme legislative body, enjoys certain powers, privileges, and immunities essential for its functioning, derived primarily from Article 105 of the Constitution. These provisions aim to safeguard the independence and authority of Parliament and its members from external interference. Privileges essentially encompass the special rights and immunities enjoyed by Parliament collectively and its members individually. However, the exercise of these privileges, particularly the power to expel members for breach of privilege, raises significant questions regarding accountability and the separation of powers, especially concerning the extent to which judicial review can scrutinize such actions. Article 105: Constitutional Basis Article 105 of the Constitution of India explicitly grants powers, privileges, and immunities to Members of Parliament (MPs) and the Houses of Parliament. It states: Clause (1): Freedom of speech in Parliament. Clause (2): Immunity for MPs from judicial proceedings for any statement made or any vote given by them in Parliament or any committee thereof. This immunity extends to any person publishing any report, paper, votes, or proceedings authorised by either House. Clause (3): The powers, privileges, and immunities of each House of Parliament and of the members and committees thereof shall be such as may be defined by Parliament by law and, until so defined, shall be those of the House of Commons of the United Kingdom, and of its members and committees, at the commencement of this Constitution. Following Clause (3), Parliament enacted the Parliamentary Privileges Act, 1957 , which codified certain privileges. Powers, Privileges, and Immunities of Houses of Parliament These can be broadly categorized: 1. Collective Privileges (Of the House as a whole) The right to exclude strangers from its proceedings (secret sittings). The power to control its own internal proceedings and regulate debates. The power to summon, reprimand, and commit strangers (persons other than members) for contempt of the House. The power to initiate and try breach of privilege cases. The right to ensure the privacy of its own reports, proceedings, and papers. The power to punish members and outsiders for breach of privilege or contempt of the House. The right to require the attendance of witnesses and examine them on oath. Freedom from external hindrance or obstruction in the performance of its functions. 2. Individual Privileges (Of Members individually) Freedom of Speech: Guaranteed under Article 105(1), ensuring MPs can speak freely without fear of legal action. Immunity from Arrest: Members enjoy immunity from arrest in civil cases during the session of Parliament and for a period of 40 days before and after the commencement and conclusion of the session (Article 105(2)). However, this does not extend to criminal matters. Immunity from Judicial Proceedings: As stated in Article 105(2), no MP can be held liable in any court for anything said or any vote cast in Parliament or its committees. Right to access certain authorities and privileges relating to attendance in Parliament. Power to Expel Members for Breach of Privileges The Constitution does not explicitly grant the power to expel a member. However, the power to punish for contempt, stemming from the residual powers inherited from the House of Commons (under Article 105(3) before its amendment and interpreted thereafter), has been understood to potentially include expulsion in extreme cases. Inherent Power: Both Lok Sabha and Rajya Sabha, being sovereign bodies, possess inherent powers to maintain order, dignity, and decorum. A serious breach of privilege or contempt that fundamentally undermines the House's functioning or the integrity of its members could theoretically warrant expulsion. Distinction from Disqualification: Expulsion is distinct from disqualification. Disqualification typically relates to specific conditions outlined in the Constitution (e.g., Article 102) or laws like the Tenth Schedule (anti-defection) or the Representation of the People Act, 1951. Expulsion is an internal disciplinary action taken by the House itself. Controversial Nature: The power of expulsion is highly controversial. Critics argue it can be used arbitrarily to silence dissent or remove inconvenient members, potentially infringing upon the electorate's mandate. Lack of Explicit Codification: Unlike imprisonment for contempt, expulsion is not explicitly codified in the Parliamentary Privileges Act, 1957, making its exercise based on precedent and interpretation of inherent powers. Past Instances: While rare, instances and debates surrounding potential expulsion have occurred, highlighting the sensitivity of this power. Judicial Review of Expulsions The relationship between parliamentary privileges and judicial review has evolved significantly over time. Initially, there was a strong assertion of parliamentary supremacy in matters of privilege. Keshav Singh Case (1965): The Supreme Court, in its advisory opinion, upheld the Parliament's power to commit individuals for contempt. However, it also affirmed the judiciary's role in interpreting the Constitution, including Article 105, and stated that if a person was imprisoned under a warrant issued by the Speaker, they could seek judicial remedy. This established a principle of judicial review, albeit nuanced. P. V. Narasimha Rao v. State (1998): This landmark judgment dealt with the immunity granted under Article 105(2) concerning the "J. M. Lyngdoh Committee Report" bribery case. The Supreme Court ruled that the immunity under Article 105(2) does not extend to MPs involved in bribery related to their parliamentary conduct (like voting or speaking). This case reinforced the principle that parliamentary privileges are not absolute and are subject to judicial scrutiny, especially when fundamental rights or criminal law are involved. Current Position: While Parliament retains significant autonomy in defining and enforcing its privileges, actions like expulsion are not entirely immune from judicial review. Courts can intervene if: The expulsion procedure violates constitutional guarantees (e.g., due process, natural justice). The breach of privilege cited as grounds for expulsion is not constitutionally recognized or is interpreted narrowly. The expulsion is deemed arbitrary, mala fide, or disproportionate. The action infringes upon fundamental rights guaranteed under Part III of the Constitution. Balancing Act: The judiciary generally adopts a principle of deference towards Parliament's internal functioning but asserts its authority to ensure that parliamentary powers are exercised within constitutional boundaries. Expulsion, being a severe measure, would likely attract closer judicial scrutiny than routine disciplinary actions. Comparative Table: Powers vs. Privileges vs. Immunities Aspect Description Constitutional/Legal Basis Example Powers Abilities and functions Parliament can perform (e.g., law-making, oversight). Articles 107-111 (Legislative Procedure), Article 118 (Rules of Procedure), Article 105(3) (Privileges). Passing the Union Budget, Conducting Question Hour. Privileges Special rights and immunities essential for Parliament's functioning and independence. Article 105(3), Parliamentary Privileges Act, 1957. Power to punish for contempt, Freedom of speech in Parliament. Immunities Protection granted to MPs and Houses from certain legal actions or proceedings. Article 105(2) (Immunity from court proceedings for statements/votes), Article 105(2) read with Article 105(3) (Immunity from arrest in civil cases). An MP cannot be sued for a speech made during a parliamentary debate. In conclusion, the Indian Parliament possesses significant powers, privileges, and immunities under Article 105, crucial for its effective functioning and independence. While the collective power to punish for contempt is recognized, the specific power to expel a member for breach of privilege remains a complex and debated aspect, not explicitly defined by statute but inferred from inherent authority. Although Parliament enjoys considerable latitude, such severe actions are not entirely beyond the pale of judicial review. The Supreme Court's stance indicates that judicial oversight can be exercised to ensure procedural fairness, constitutional compliance, and prevent arbitrary use of power, thereby maintaining a delicate balance between parliamentary sovereignty and constitutional supremacy.

Can an MP be arrested during a Parliamentary session?

Yes, an MP can be arrested during a Parliamentary session if the alleged offence is of a criminal nature. However, they cannot be arrested in a civil case without prior notice to the Speaker/Chairperson and during the specified period around the session (40 days before and after).

What is the difference between parliamentary privilege and parliamentary immunity?

While often used interchangeably, 'privilege' refers to the special rights and powers of Parliament and its members (e.g., freedom of speech, power to punish contempt), whereas 'immunity' specifically refers to protection from certain legal processes (e.g., immunity from arrest in civil cases, immunity from court proceedings for statements made).

Parliamentary Powers Privileges Immunities India

Article 105: Constitutional Basis

Article 105 of the Constitution of India explicitly grants powers, privileges, and immunities to Members of Parliament (MPs) and the Houses of Parliament. It states:

Clause (1): Freedom of speech in Parliament.
Clause (2): Immunity for MPs from judicial proceedings for any statement made or any vote given by them in Parliament or any committee thereof. This immunity extends to any person publishing any report, paper, votes, or proceedings authorised by either House.
Clause (3): The powers, privileges, and immunities of each House of Parliament and of the members and committees thereof shall be such as may be defined by Parliament by law and, until so defined, shall be those of the House of Commons of the United Kingdom, and of its members and committees, at the commencement of this Constitution.

Following Clause (3), Parliament enacted the Parliamentary Privileges Act, 1957, which codified certain privileges.

Powers, Privileges, and Immunities of Houses of Parliament

These can be broadly categorized:

1. Collective Privileges (Of the House as a whole)

The right to exclude strangers from its proceedings (secret sittings).
The power to control its own internal proceedings and regulate debates.
The power to summon, reprimand, and commit strangers (persons other than members) for contempt of the House.
The power to initiate and try breach of privilege cases.
The right to ensure the privacy of its own reports, proceedings, and papers.
The power to punish members and outsiders for breach of privilege or contempt of the House.
The right to require the attendance of witnesses and examine them on oath.
Freedom from external hindrance or obstruction in the performance of its functions.

2. Individual Privileges (Of Members individually)

Freedom of Speech: Guaranteed under Article 105(1), ensuring MPs can speak freely without fear of legal action.
Immunity from Arrest: Members enjoy immunity from arrest in civil cases during the session of Parliament and for a period of 40 days before and after the commencement and conclusion of the session (Article 105(2)). However, this does not extend to criminal matters.
Immunity from Judicial Proceedings: As stated in Article 105(2), no MP can be held liable in any court for anything said or any vote cast in Parliament or its committees.
Right to access certain authorities and privileges relating to attendance in Parliament.

Power to Expel Members for Breach of Privileges

The Constitution does not explicitly grant the power to expel a member. However, the power to punish for contempt, stemming from the residual powers inherited from the House of Commons (under Article 105(3) before its amendment and interpreted thereafter), has been understood to potentially include expulsion in extreme cases.

Inherent Power: Both Lok Sabha and Rajya Sabha, being sovereign bodies, possess inherent powers to maintain order, dignity, and decorum. A serious breach of privilege or contempt that fundamentally undermines the House's functioning or the integrity of its members could theoretically warrant expulsion.
Distinction from Disqualification: Expulsion is distinct from disqualification. Disqualification typically relates to specific conditions outlined in the Constitution (e.g., Article 102) or laws like the Tenth Schedule (anti-defection) or the Representation of the People Act, 1951. Expulsion is an internal disciplinary action taken by the House itself.
Controversial Nature: The power of expulsion is highly controversial. Critics argue it can be used arbitrarily to silence dissent or remove inconvenient members, potentially infringing upon the electorate's mandate.
Lack of Explicit Codification: Unlike imprisonment for contempt, expulsion is not explicitly codified in the Parliamentary Privileges Act, 1957, making its exercise based on precedent and interpretation of inherent powers.
Past Instances: While rare, instances and debates surrounding potential expulsion have occurred, highlighting the sensitivity of this power.

Judicial Review of Expulsions

The relationship between parliamentary privileges and judicial review has evolved significantly over time. Initially, there was a strong assertion of parliamentary supremacy in matters of privilege.

Keshav Singh Case (1965): The Supreme Court, in its advisory opinion, upheld the Parliament's power to commit individuals for contempt. However, it also affirmed the judiciary's role in interpreting the Constitution, including Article 105, and stated that if a person was imprisoned under a warrant issued by the Speaker, they could seek judicial remedy. This established a principle of judicial review, albeit nuanced.
P. V. Narasimha Rao v. State (1998): This landmark judgment dealt with the immunity granted under Article 105(2) concerning the "J. M. Lyngdoh Committee Report" bribery case. The Supreme Court ruled that the immunity under Article 105(2) does not extend to MPs involved in bribery related to their parliamentary conduct (like voting or speaking). This case reinforced the principle that parliamentary privileges are not absolute and are subject to judicial scrutiny, especially when fundamental rights or criminal law are involved.
Current Position: While Parliament retains significant autonomy in defining and enforcing its privileges, actions like expulsion are not entirely immune from judicial review. Courts can intervene if:
- The expulsion procedure violates constitutional guarantees (e.g., due process, natural justice).
- The breach of privilege cited as grounds for expulsion is not constitutionally recognized or is interpreted narrowly.
- The expulsion is deemed arbitrary, mala fide, or disproportionate.
- The action infringes upon fundamental rights guaranteed under Part III of the Constitution.
Balancing Act: The judiciary generally adopts a principle of deference towards Parliament's internal functioning but asserts its authority to ensure that parliamentary powers are exercised within constitutional boundaries. Expulsion, being a severe measure, would likely attract closer judicial scrutiny than routine disciplinary actions.

Comparative Table: Powers vs. Privileges vs. Immunities

Aspect	Description	Constitutional/Legal Basis	Example
Powers	Abilities and functions Parliament can perform (e.g., law-making, oversight).	Articles 107-111 (Legislative Procedure), Article 118 (Rules of Procedure), Article 105(3) (Privileges).	Passing the Union Budget, Conducting Question Hour.
Privileges	Special rights and immunities essential for Parliament's functioning and independence.	Article 105(3), Parliamentary Privileges Act, 1957.	Power to punish for contempt, Freedom of speech in Parliament.
Immunities	Protection granted to MPs and Houses from certain legal actions or proceedings.	Article 105(2) (Immunity from court proceedings for statements/votes), Article 105(2) read with Article 105(3) (Immunity from arrest in civil cases).	An MP cannot be sued for a speech made during a parliamentary debate.

In conclusion, the Indian Parliament possesses significant powers, privileges, and immunities under Article 105, crucial for its effective functioning and independence. While the collective power to punish for contempt is recognized, the specific power to expel a member for breach of privilege remains a complex and debated aspect, not explicitly defined by statute but inferred from inherent authority. Although Parliament enjoys considerable latitude, such severe actions are not entirely beyond the pale of judicial review. The Supreme Court's stance indicates that judicial oversight can be exercised to ensure procedural fairness, constitutional compliance, and prevent arbitrary use of power, thereby maintaining a delicate balance between parliamentary sovereignty and constitutional supremacy.

Q2. (a) What are the powers, privileges and immunities of Houses of Parliament in India? Do they have the power to expel any of their members for breach of privileges? If so, are such expulsions subject to judicial review? Discuss.

Model Answer

Introduction

Powers, Privileges, and Immunities of Houses of Parliament

1. Collective Privileges (Of the House as a whole)

2. Individual Privileges (Of Members individually)

Power to Expel Members for Breach of Privileges

Judicial Review of Expulsions

Comparative Table: Powers vs. Privileges vs. Immunities

Conclusion

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Key Definitions

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Examples

Freedom of Speech Immunity

Contempt Case - Rajya Sabha (2005)

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