The term "parliamentary privilege" is essentially used to describe the law relating to

the privileges or immunities of Parliament and includes its powers to punish for
"contempt" or breach of privilege. The privileges, whether of Parliament itself as a
collective body or of the individual members, are intended to enable them to carry out
their constitutional functions of legislating, debate and enquiry effectively,
independently and without interference or obstruction from any quarter. Since, India
has these privileges enshrined in its Constitution, it would be appropriate to approach
the topic with reference to the relevant constitutional provisions. The law on the
subject in other countries is an important aid for understanding the limits and extent of
the law of privileges.
1

Article 105 of the Constitution relating to the "Powers, privileges and immunities of
Parliament and its members" and Article 194 relating to the State Legislatures and
their members contain certain enumerated privileges and powers while leaving room
for a large number of uncodified and unenumerated privileges to continue. Reference
to certain other provisions like Articles 118, 121, 122, 208, 211 and 361-A, which also
have a bearing on the subject, are made at the appropriate places.
Regarding speech
Article 105(1) guarantees freedom of speech in Parliament subject of course to the
rules and Standing Orders regulating the procedure of Parliament. What makes Article
105(1) effective and much more than the right of every citizen to free speech
guaranteed by Article 19(1)(a), is the immunity from the process of the courts in
respect of anything said in the House. The privilege is available not only to the
Members of Parliament but also, under Article 105(4) of the Constitution, to persons
like the Attorney General of India or Ministers who are not members but have a right
to speak in the House. The stage has been set for fearless participation in the debates
in the House. In order to claim the immunity, what needs to be shown is only that
Parliament was sitting and that its business was being transacted
2

The limitation on the privilege regarding free speech in Parliament are few. One
limitation obviously is that the freedom is subject to the constitutional provisions and
the rules and procedures of Parliament. The rules are those framed under Article 118
of the Constitution. Under Article 121, Parliament cannot discuss the conduct of
Judges of the Supreme Court and of the Judges of the High Court. Even if there is any
violation of these limits it would still be a matter exclusively for Parliament to deal
with and the courts would have no jurisdiction to look into the matter. In view of
Article 122, the courts are also explicitly barred from enquiry into the validity of any
proceeding in Parliament. Another exception is of course that Parliament must be
sitting. The privilege cannot, arguably, be stretched to cases of casual conversation in

the House. A member cannot also claim immunity for any speech that he may make
outside the House even if it is a verbatim reproduction of what he has said inside the
House. In a case decided by the United States Supreme Court evidence had been
admitted on the authorship, content and motivation of a speech made by a member on
the floor of the House of Representatives in pursuance of a conspiracy designed to
give assistance in return for compensation. It was held that the conspiracy conviction
was based on an intensive enquiry of the proceedings of the House and was, therefore,
unsustainable. In England, under Section 13 of the Defamation Act, a member may
waive privilege and contest the proceedings. In the absence of a similar provision, it
is doubtful if an Indian court could, in the light of the express bar under Article
105(2), entertain a litigation even in a case of waiver of privilege. So, it is evident that
subject to very minor limitations the privilege under Articles 105(1) and (2) with
regard to speech in the House is complete, conclusive and outside the scope of
scrutiny or enquiry by other organs of the State.
3

Regarding publication
The freedom of publication is available to all persons who may publish reports, etc. of
the House or papers under the authority of the House. For the purposes of Articles
105(1) and 105(2), it is quite immaterial if the publication was meant for circulation
among the Members of Parliament or for a larger audience. The development of the
law in this regard owes much to the case ofStockdale v. Hansard A book containing
defamatory matter was published under the authority of the House of Commons
leading to a suit for damages. The suit was decreed holding that no privilege is
attached to the publication. This led to the framing of the Parliamentary Papers Act,
1840 granting complete privilege to the publications made under the authority of the
House. Articles 105(1) and (2) reflect the march of the English law on the subject.
5

A word must also be said about the rights of publication in respect of proceedings of
the House, but not under its authority. Such publications obviously do not have the
protection of Articles 105(1) and (2). But, an attempt has been made to protect the
freedom of the press and thereby give the public access to the proceedings of the
House. The Parliamentary Proceedings (Protection of Publication) Act, 1956 was
repealed during the emergency but re-enacted in 1977 and it covers both publications
and broadcasts. Article 361-A was added to the Constitution later and the protection
has since then a much higher status. But, it must be noted that the protection is only of
immunity from court proceedings and not from action from the House itself in case it
initiates proceedings for breach of privilege.
In order to qualify for this immunity from civil and criminal proceedings, all that is
required is that the publication or broadcast must be a "substantially true report" of the
proceedings in the House. The immunity is lost only if it is proved that the publication

was made with malice or if it related to the proceedings of any secret meeting of the
House. In some ways the privilege is similar to the one conferred on persons reporting
court proceedings by the Fourth Exception to Section 499 of the Penal Code. The
privilege could be successfully claimed even in respect of a part of the debate which
alone the reporter finds newsworthy provided that it is a fair report, untainted with
malice.
6

The limits of the privilege with regard to publication can be appreciated with
reference to two cases decided by the Supreme Court. In M.S.M. Sharma v. Sri
Krishna Sinha , action was initiated for breach of privileges in respect of a publication
of a speech made in the House that had been expunged by the Speaker. In Jatish
Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee a member published questions that
were disallowed by the Speaker. In both cases, the publications were found not
entitled to any privilege.
7

Regarding voting
The other privilege expressly conferred by Article 105(2) of the Constitution is the
one relating to the vote by a member in the House. The ramification of having a
complete immunity from court proceedings in respect of the vote in Parliament was
felt in JMM case The Supreme Court was called upon to decide if the constitutional
immunity could be applied to the case of an alleged bribe given to members for
exercising their vote in Parliament. The Court by majority held that the member, the
alleged bribe-taker, could not be proceeded against. But, the bribe-giver and a
member, who had not voted but had merely abstained, were found disentitled to any
immunity. The majority were quite unhappy that they had to come to the conclusion
that they did:
9

"137. We are acutely conscious of the seriousness of the offence that the alleged bribetakers are said to have committed. If true, they bartered a most solemn trust
committed to them by those they represented. By reason of the lucre that they
received, they enabled a Government to survive. Even so, they are entitled to the
protection that the Constitution plainly affords them. Our sense of indignation should
not lead us to construe the Constitution narrowly, impairing the guarantee to effective
parliamentary participation and debate." (SCC p. 730, para 137)
Both, the minority and the majority judgments in the case indicate the march of the
law in various countries and the attempts to cut down on the immunity. In particular,
reference is found to the Report of the Royal Commission on Standards in Public Life
(chaired by Lord Salmon) which has stated that "neither the statutory nor the common
law applies to the bribery or attempted bribery of a Member of Parliament in respect
of his parliamentary activities" but "corrupt transactions involving a Member of

Parliament in respect of matters that has nothing to do with the parliamentary

activities would be caught by the ordinary criminal law". The report also notes that
investigation into such matters could be too complex, would require special expertise
and be beyond the investigative capacities of the House. A Parliamentary
Commissioner for Standards appointed by the Select Committee of Standards and
Privileges can and does go into the propriety of a member's conduct and deals with
allegations of corrupt payment to members. But, the courts in England still believe
that the ordinary criminal courts are best equipped to deal with bribery cases. Buckley,
J. in R. v. Greenway has stated as follows:
10

"That a Member of Parliament against whom there is a prima facie case of corruption
should be immune from prosecution in the courts of law is to my mind an
unacceptable proposition at the present time. I do not believe it to be the law. The
Committee of Privileges is not well equipped to conduct an enquiry into such a case,
nor is it an appropriate or experienced body to pass sentence. Unless it is to be
assumed that it would be prejudiced in his favour, I cannot see that it would be in the
member's own interest for the matter to be dealt with by the Committee. The courts
and legislature have over the years built up a formidable body of law and codes of
practice to achieve fair treatment of suspects and persons ultimately charged and
brought to trial. Again, unless it is to be assumed that his peers would lean in his
favour, why should a member be deprived of a jury and an experienced judge to
consider his guilt or innocence and, if appropriate, sentence? Why should the public
be similarly deprived?"
Section 73-A of the Crimes Act, 1914 in Australia and Section 108 of the Criminal
Code in Canada are statutory provisions that make the acceptance of a bribe by
parliamentarians, an offence. The House of Commons, in 1947 and in 1995, has
resolved that no member could, for consideration, reward or fee, raise an issue in the
House. Section 14(a) of the Ceylon Bribery Act, 1954 seeks to punish both the bribegiver and bribe-taker in case of bribery of judicial officers and members of either the
Senate or the House of Representatives. The provision has been held to prevail over
the privilege claim made by the member. But, the plain words of Articles 105(1) and
(2), that the majority in JMM case9 found compelled to apply, has left little room for
recognising the changes taking place the world over.
11

The National Commission for review of the Constitution in its report submitted in
2002 has in fact recommended that Article 105(2) ought to be amended:
12

"5.15.6. The Commission recommends that Article 105(2) may be amended to clarify
that the immunity enjoyed by the Members of Parliament under parliamentary
privileges does not cover corrupt acts committed by them in connection with their
duties in the House or otherwise. Corrupt acts would include accepting money or any

other valuable consideration to speak and/or vote in a particular manner. For such acts
they would be liable for action under the ordinary law of the land. It may be further
provided that no court will take cognizance of any offence arising out of a member's
action in the House without prior sanction of the Speaker or the Chairman, as the case
may be. Article 194 (2) may also be similarly amended in relation to the Members of
State Legislatures."
Perhaps, one limitation on the privilege to vote can be found in the Constitution
(Fifty-second Amendment) Act, 1985 and the anti-defection rules framed thereunder.
The disobedience of the party whip could lead to disqualification of a member. It
applies only to voting and not to any other right of a member like his privilege
regarding speech.
13

Regarding statutory law

This brings us to Article 105(3) of the Constitution. The provision has been the cause
of a great deal of confusion, throughout. Article 105(3), as originally framed, provided
that until the law relating to parliamentary privilege is codified, the privileges of the
House would be the same as those of the House of Commons that existed at the
commencement of the Constitution. In the Constituent Assembly Debates, Dr.
Ambedkar remarked that South Africa has passed a law and codified the law of
privileges. The provision Article 85(3) of the Draft Constitution was passed with the
hope of framing statutory law within a short time-frame. The criticism even then was
that the provision was vague and that the reference to the law of another country was
uncalled for. No attempt at codification was made by Parliament or the legislatures.
After the Constitution Forty-second and Forty-fourth Amendment Acts of 1976 and
1978 respectively, the original Article 105(3) has been substituted. The present Article
105(3) preserves the privileges existing until the coming into force of the Forty-fourth
Amendment Act pending legislation on the subject. The change is cosmetic and in
substance the article remains the same. We thus have a transitory provision in force
for decades.
14

15

The reluctance to codify the law of privileges appears to be based on a misconception

that such codification would lead to increased interference by the courts. A former
Speaker of the Lok Sabha has stated the following in the course of an article :
16

"It is provided that the privileges of the parliamentarians may be codified. However,
on one hand there is a pressing demand made by the media persons to make a law,
providing for the privileges, on the other hand, Members of Parliament and most of
the Presiding Officers have opposed the move to codify them on the ground that as the
judicial interpretation of the law is the responsibility of none else but the judiciary. If
privileges are codified, the matters would be taken to the courts and the Members of

Parliament and the Presiding Officers would be asked to subject themselves to the
jurisdiction of the judiciary and that would affect the equality between three wings of
the Government and ultimately affect the privileges of the parliamentarians to express
their views without fear or favour."
It must be remembered that Article 122 of the Constitution does expressly bar the
jurisdiction of courts in the affairs of the House. The Court has even refused to
enquire into the validity of the passing of a law on the ground that several members
were under preventive detention. But, parliamentarians appear to be wary that the
Court by declaring itself to be the final authority on the interpretation of the
Constitution and the laws would interfere in its functioning. The limits of
parliamentary privilege, particularly in this uncodified scenario has become a matter
of law. In such a situation, it is a moot question if by avoiding codification of the
privileges, as contemplated by the Constitution, greater powers are being retained by
Parliament. It does appear that codification is a distant dream as the first conference of
the Chairmen of Committees of Privileges of Parliament and State Legislatures in
India held in 1992, has unanimously resolved that there should be no codification of
privileges. In fact, the Constitution Review Committee has said that privileges are not
meant to be privileges against the people or against the freedom of the press. It has
been recommended as follows :
17

18

19

"5.15.3 ... The Commission recommends that the time has come to define and delimit
privileges deemed to be necessary for the free and independent functioning of
Parliament. It should not be necessary to run to the 1950 position in the House of
Commons every time a question arises as to what kind of legal protection or immunity
a member has in relation to his or her work in the House."
If a law is made in exercise of power under Article 105(3), it would undoubtedly have
to satisfy the test of constitutionality before the courts. The argument that law made in
exercise of this power would be outside the scope of Article 13 of the Constitution has
been repelled by the Supreme Court. But, in the present situation, when no law is
made but nonetheless privileges are claimed and exercised by the House under the
latter part of Article 105(3) itself, it puts the fundamental rights of the citizen under
peril and leads to disputes and judicial adjudication. The courts are forced to enter an
arena that they would normally avoid.
20

Regarding privileges and fundamental rights

The advisory opinion rendered by the Supreme Court in the case ofKeshav
Singh arose out of the exercise of one of the most important privileges of a legislature
i.e. to punish for contempt. Such cases have arisen out of the zealousness of the courts
to protect the fundamental rights of the citizen and the legislative bodies to protect
21

their privileges. In this situation, the interest of the nation is twofold i.e. of free and
frank discussion in the House and also to safeguard the dignity of its citizens.
The Supreme Court was called upon to decide on the jurisdiction of the High Court to
entertain and deal with the petition filed byKeshav Singh21 complaining of the
violation of his fundamental rights on account of the action of the assembly. The
question arose whether the fundamental rights of the citizen itself could be subject to
the parliamentary power of privilege. It must also be remembered that in M.S.M.
Sharma7, the Supreme Court had already held that the right to free speech of every
citizen under Article 19(1)(a) is subject to the privilege of the House. The Supreme
Court inKeshav Singh21 opined that the violation of Article 21 on account of exercise
of powers under Article 194(3) could be examined by the Court. The Court proceeded
on the basis that it cannot look askance if an allegation of violation of the fundamental
rights of a citizen is brought before it on account of the action of a legislative body.
The Committee of Privileges of Parliament has, however, opined that the majority
opinion is wrong. If the organs of the Government are unsure on what is right then
the citizen and the nation will suffer.
22

A recent stand-off occurred in Tamil Nadu. The Speaker of the assembly issued a
warrant for the arrest of an MLA, R. Tamraikani, for violating the privileges of the
House by hitting and causing grievous injuries to the Agriculture Minister in the
assembly when the session was going on. The High Court on a habeas corpus petition
ordered his release. He was released, but within a few minutes he was rearrested on
the order of the Speaker. The High Court on a second habeas corpus petition ordered
his release. So the possibility of these kinds of conflicts between the courts and the
legislature can occur. The question would arise as to the law that should govern a
criminal act done within the House. Is it a matter of mere privilege or a matter to be
dealt with by a court of law? If a murder is committed in the House then the ordinary
law of the land would obviously apply. A question would also arise as to the
fundamental right of a citizen who could end up being imprisoned twice over for the
same infraction. His fundamental right under Article 20(2) of the Constitution, which
bars a person being prosecuted and punished for the same offence more than once,
would be jeopardised since the privilege action would not be a trial by a court. It can
only be hoped that when the law of privileges is codified adequate thought would be
bestowed on these aspects.
In Kihoto Hollohan the Court was called upon to decide intricate questions of
constitutional law touching upon the nature and limits of the powers of the Speaker of
the House and the scope for judicial intervention in respect of exercise of power by
the Speaker. The Supreme Court by majority held that the Speaker while adjudicating
on disputed disqualification under the Tenth Schedule to the Constitution exercises
judicial power and that decisions rendered are subject to judicial review. The Court
23

did, however, hold that the Speaker of the House holds an exalted and pivotal position
in a parliamentary democracy and is the guardian of the rights and privileges of the
House. The vesting of adjudicatory powers on such an authority was upheld. It was
held that the Court could at best consider the correctness of the ultimate decision but
could not pass orders at the interlocutory stage, except in grave circumstances, or at
any stage prior to the making of the decision.
This once again brings us to the essential issue of whether the existence, limits and
exercise of the privileges of the House vis--vis the fundamental rights of a citizen is
ultimately determined by the House itself or by judicial pronouncements. The judicial
view is clearly that the "officers and members of a legislature cannot claim immunity
when they exercise their powers in a manner opposed to the Constitution" (KLT p.
341, para 6) and that the power under Article 226 or Article 32 of the Constitution can
be invoked against the legislature.
24

Regarding non-fundamental rights issues

There have been other instances of the Supreme Court and Parliament having doubts
on the jurisdiction of the other even in cases where fundamental rights issues were not
involved.
Commissions of Enquiry were appointed and reports were submitted on various
offences committed by persons in high political and public offices during the period of
the operation of the proclamation of emergency. The Special Courts Bill, 1978 to
provide for the trial of these classes of cases was sought to be introduced. The
President, in exercise of powers under Article 143 of the Constitution, referred the
following question to the Supreme Court for consideration and report:
"Whether the Bill or any of the provisions thereof, if enacted, would be
constitutionally invalid?"
Before the Supreme Court, a preliminary objection was raised by some States and
several interveners that the reference was incompetent as the Court would be
encroaching upon the functions and privileges of Parliament. The argument was that
the Court would be "withdrawing" or "lifting" a Bill in seisin of the Lok Sabha to
itself. The Supreme Court held that it has a constitutional obligation to consider and
report on the reference and that the Court was justified in pronouncing on the
constitutional validity of the Bill, a task that fell within its legitimate domain. It also
held that rendering an opinion would not encroach upon any parliamentary privilege
and the objection based on Article 105(3) of the Constitution is without merit.
25

In another case the Central Government appointed a Commission of Enquiry against

the Chief Minister of a State. The State challenged that action before the Supreme
Court contending, inter alia, that the Centre's action offends Article 194(3) of the
Constitution as the State Legislature had the exclusive privilege to appoint a
committee to enquire into the conduct of its members. The argument was repelled by
the Supreme Court.
26

In Justice V. Ramaswami case a motion for removal of a sitting Judge of the Supreme
Court was made in the Lok Sabha. The motion was admitted by the Speaker. But, the
House was dissolved thereafter. The matter reached the Supreme Court at this stage
and a whole gamut of issues were raised for consideration. Did the motion lapse on
the House being dissolved? Could the Supreme Court investigate such a question?
Since the question related to the removal of a Judge, was not the jurisdiction to deal
with the matter exclusively within the domain of Parliament? Was the decision of the
Speaker, to admit the motion and to constitute a committee, valid?
27

The Supreme Court disposed of the matter without issuing any specific direction or
writ to any authority. Nonetheless, the Court proceeded to declare the legal and
constitutional position and leave the organs of the State to consider matters falling
within the orbit of their respective jurisdiction.27 It was held that the motion had not
lapsed and that the courts retain the jurisdiction to make such a declaration. On an
interpretation of the Constitution and the provisions of the Judges (Inquiry) Act, 1968,
it was held that the Speaker is a statutory authority under the Act and the
constitutional proceedings for removal of a judge up to a certain stage cannot be said
to be outside the Court's jurisdiction.
Regarding other privileges
There are of course several other privileges of Parliament like those relating to the bar
on arrest of a member during a session for 40 days before its commencement and 40
days after its conclusion, right to exclude strangers from the House, rights of the
Parliamentary Committees to call for records, right to prohibit publications, etc. Even
an independent officer appointed by a Parliamentary Committee has been recognised
to be an officer of the House and his actions beyond the pale of judicial review But, it
is rarely that the exercise of these privileges has led to any inter-institutional issues.
During the period from 1952 to 1984 a total of 87 reports, involving 100 issues of
privilege were submitted by the Privileges Committees of the Lok Sabha and Rajya
Sabha. A good number of these cases involved reflections on members, Speaker or
committees of the House.
28

29

A question has arisen, with some regularity, as to whether a court of law can issue a
notice to the Speaker of a House or to its members in connection with their activities

relating to the House. Is the issuance of a notice and its non-acceptance by the
Speaker a matter of parliamentary privilege? In Thankamma v. Speaker, T.C.
Assembly notice was issued by the Court and accepted by the Speaker. A counteraffidavit was filed by the Secretary to the legislature and all arguments, including the
jurisdiction of the Court to go into the question of the validity of an oath taken in the
assembly were raised. A decision was rendered. But, in Tej Kiran Jain v. Sanjiva
Reddy2 the Speaker of the Lok Sabha had directed five members of the House to
ignore the notice of lodgment of petition of appeal issued by the Court. The case was
dismissed and consequently the apprehended conflict was averted.
30

The comment that was made on the case at that time is worth quoting and is perhaps
more relevant today than at any other time:
31

"... Therefore, while the courts should be excluded from judicially reviewing the
freedom of speech in a legislature, the members have a commensurate duty to exercise
self-restraint even in difficult moments. They must always keep in mind their special
position and the position of the august legislative body. They must at the same time
not forget their representative character. They are elected by the people to mitigate
their grievances and not to claim superiority over their ultimate masters. The rules of
procedure and conduct of business in Parliament and the legislatures provide for
parliamentary decorum and decency and it is the onerous duty of the Presiding
Officers to see that the freedom is used properly."
In another case relating to the taking of oath in the assembly, the Kerala High Court
issued notice which the Speaker refused to accept or acknowledge. The result was that
the Court proceeded to hear and decide the case. The question does arise if any
tangible benefit is obtained by ignoring notices and courting decisions without
contest. It is doubtful if the privileges of the House are enhanced or protected in this
manner.
32

Regarding solutions to avoid conflictsThe complementary role

The solution to avoid conflicts lies in understanding the relationship among the
institutions. The doctrine of separation of powers coined by Aristotle and developed
by Locke, Montesquieu and others has found expression in the Constitution of many
countries. The categorisation of the powers of the State is intended to prevent
concentration of power in any single group of persons and to let the most competent
organ perform the duties of the State without interference from the others. The
balance of power in any Government is ensured by a system of checks and balances
that effectively prevent any one organ from becoming supreme. The three branches
are to share power and function without encroaching upon the powers confided to the
others.
33

In practice, a complete separation of powers is never achieved. The organs of the State
do not operate in watertight compartments. Even early thinkers like Montesquieu did
not visualise a rigid separation of powers. What was visualised was only mutual
restraint by the organs. In any modern Government, the overlapping of functions
cannot be avoided. The problems of the State have increased manifold and are too
complex for being decided by any one organ in isolation. But, if the organs act in the
interest of the State and with mutual respect for the functions and powers of the other
organs, the objective of the doctrine of separation of powers is substantially achieved.
The American Constitution expressly vests the legislative, executive and judicial
powers in separate entities. The legislative power is granted to the Congress, the
executive power to the President and the judicial power to the Supreme Court and
other courts.
34

The Indian Constitution does not explicitly refer to any separation of powers. But,
there is separation of powers by necessary implication. In the Constitutional Assembly
Debate, preceding the framing of the Constitution, one of the members suggested that
Article 40-A be inserted. The article was to read as follows:
35

"40-A. There shall be complete separation of powers as between the principal organs
of the State viz. the Legislative, the Executive, and the Judicial."
But this amendment was opposed by many contending, inter alia, that what was
required was a harmonious governmental structure and not a complete separation of
powers. Dr. B.R. Ambedkar while conceding that the executive should be separated
from the judiciary, was not willing to accept the American model of separation of
powers of the executive from the legislature. So the Indian constitutional model
definitely does not prescribe watertight compartments but seems to welcome
encroachments that may be essential to ensure that the system of checks and balances
is effective. The separation of powers is accepted so as to preserve the freedom and
independence of the organs of the State as are necessary for their proper functioning.
The Supreme Court in several cases has recognised that a separation of powers is
implicit in the Constitution. In fact parliamentarians appear to accept that a proper
understanding of the doctrine of separation of powers can lead to justice being done:
36

"The Supreme Court in India has said that, the judiciary has a right under its inherent
jurisdiction to look into the appeals against the decisions given in the privilege
matters, in spite of the fact, that they are specifically debarred from looking into the
regularity or irregularity of the procedure followed by the legislature, if the glaring
patent mistakes are committed and if the mistakes are patent and quite obvious.

Wherever, the theory of separation of powers is followed, there have been differences
and conflicts between the wings by which powers are separately enjoyed. That has
happened in many countries and in India also. The wisdom lies in understanding the
essence of the principles and situations and acting in a manner that unnecessary
controversies are not created, and justice is done, and facilities to function without
obstruction are generated. By and large, fortunately the different wings of the State in
India have functioned in that spirit, which has helped the State to function, as it
should."
37

The complimentary role assigned to the judiciary is not to impede the independent
functioning of the other organs of the State but to be the sentinel on the qui vive that
averts the subversion of the Constitution. Whenever parliamentary privileges have
been used as a shield the institutions have adopted a complementary role and
protected it. But, wherever it has been used as a sword on the citizenry the
complementary role has been played by the judiciary by testing the constitutionality of
the action with reference to the rights of the institution or individual and the privileges
of the House.
Normally, when the legislature enacts a law, it leaves it to the executive to issue the
notification bringing that law into force. It is generally provided that the law will
come into force on such day as may be notified. There have been instances when the
executive has failed to issue the necessary notification to bring the law into force and
to that extent frustrating the object of the legislation and the will of the legislature. As
examples, the Kerala Scheduled Tribes Restoration of Lands Act and the Sick
Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004), repealing the
Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986). In the former
case, it was only after the Kerala High Court intervened that the necessary notification
was issued. In the latter case, there has not been a judicial intervention with the result
that the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (1 of 2004)
has not come into force yet. When the law enacted by the legislature is not brought
into force by the executive which is entrusted with the obligation in that behalf by the
legislature, occasions may arise for the judiciary to intervene and any such
intervention by the judiciary can only be regarded as an intervention in fulfilling its
complementary role under the Constitution.
I, therefore, suggest that there need not be an attempt to find out the conflicts and
highlight them. What is called for is a constructive approach in appreciating the role
of each of the institutions and the circumstances under which a slight inroad or the
presumed inroad is made by the other organ in the trinity. If such a constructive
approach is made, the goal of the Constitution will be achieved and the rationale
behind not adopting the rigid doctrine of separation of powers by the Founding
Fathers of the Constitution would also be justified.

---

* The Third K.S. Rajamony Public Law Lecture delivered on 27-5-2005 at

Kochi. Return to Text
+ Judge, Supreme Court of India. Return to Text
1. Erskine May: Parliamentary Practice (23rd Edn.) p. 75, defines
"parliamentary privilege" as "... the sum of the peculiar rights enjoyed by each
House collectively as a constituent part of the High Court of Parliament, and by
the members of each House, individually, without which they could not
discharge their functions, and which exceed those possessed by other bodies or
individuals". Return to Text
2. Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272. A suit for damages filed
by devotees of the Sankaracharya in respect of derogatory remarks made by six
members in the House was dismissed by the Supreme Court. Return to Text
3. United States v. Thomas F. Johnson, 15 L Ed 2d 681 : 383 US 169 (1966) Return
to Text

4. Erskine May: Parliamentary Practice (23rd Edn.) p. 113Return to Text

5. (1839) LJ (NS) QB 294 Return to Text
6. Cook v. Alexander, (1973) 3 WLR 617 : (1973) 3 All ER 1037 (CA) (Court of
Appeal through Lord Denning, M.R.)Return to Text
7. AIR 1959 SC 395 Return to Text
8. AIR 1961 SC 613 Return to Text
9. P.V. Narasimha Rao v. State, (1998) 4 SCC 626 Return to Text
10. Quoted in "Parliamentary Privilege and the Common Law of
Corruption: R. v. Greenway", Public Law, 1998, p. 356.Return to Text
11. Attorney-General of Ceylon v. De Livera, (1962) 3 All ER 1066 (PC) Return to
Text

12. Report of the National Commission to Review the Working of the

Constitution (Vol. I, March 2002) p. 168Return to Text

13. Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd

Edn.) p. 100 Return to Text
14. Constituent Assembly Debates, Vol. 10, p. 373 Return to Text
15. Constituent Assembly Debates, Vol. 8, p. 143 Return to Text
16. Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of
Constitutional and Parliamentary Studies, Vol. XXXV, Nos. 1 and 2, p. 17Return
to Text

17. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1Return to Text
18. M.N. Kaul & S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.)
p. 219 Return to Text
19. Report of the National Commission to Review the Working of the
Constitution (Vol. I, March 2002) p. 167Return to Text
20. Special Reference No. 1 of 1964, (1965) 1 SCR 413Return to Text
21. Special Reference No. 1 of 1964, (1965) 1 SCR 413 The facts leading to the
Presidential reference are unique. Keshav Singh was reprimanded by the U.P.
Assembly for breach of privilege of a member of the House. Contempt
proceeding was initiated on account of the printing and publishing of a
pamphlet outside the House. The conduct of Keshav Singh in the House and his
letter to the Speaker led to the Speaker issuing of warrant for his arrest. Keshav
Singh was arrested and detained in prison. A petition was presented to the
Allahabad High Court on behalf of Keshav Singh and an interim order to
release him on bail was ordered. The House in turn proceeded to issue warrants
for the arrest of the Judges who passed the order and the counsel who moved
the petition. The Full Court of the High Court in turn restrained the execution
of the warrant of arrest. The stand-off led to the Presidential reference. Return to
Text

22. "Fundamental Rights and Parliamentary Privileges", Calcutta Weekly Notes,

Vol. 96, Editorial Notes, p. 29Return to Text
23. Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651Return to Text
24. Sudarsana Babu v. State of Kerala, 1983 KLT 339 affirmed in State of
Kerala v. Sudarsan Babu, 1983 KLT 764 (FB) Return to Text

25. Special Courts Bill, 1978, In re, (1979) 1 SCC 380 Return to Text
26. State of Karnataka v. Union of India, (1977) 4 SCC 608Return to Text
27. Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC
699 Return to Text
28. R. v. Parliamentary Commr. for Standards, ex p Al Fayed, (1998) 1 All ER 93
(Court of Appeal through Lord Woolf, M.R.) Return to Text
29. Ranjana Arora: Parliamentary Privileges in India, p.159Return to Text
30. AIR 1952 Trav Co 166 Return to Text
31. K.C. Joshi, "Parliamentary Privileges", (1970) 2 SCC J-10 Return to Text
32. Haridasan Palayil v. Speaker, Kerala Legislative Assembly, (2003) 3 KLT
119 Return to Text
33. L'Espirit des Lois (1748) Return to Text
34. Section 1 of Articles 1, 2 and 3 of the American Constitution. Return to Text
35. Constitution Assembly Debates, Book No. 2, Vol. VII, p. 959 Return to Text
36. Delhi Laws case, Re, AIR 1951 SC 332; Rai Sahib Ram Jawaya Kapur v. State
of Punjab, AIR 1955 SC 549 andRam Krishna Dalmia v. Justice S.R.
Tendolkar, AIR 1958 SC 538 Return to Text
37. Shivraj V. Patil "Powers, Privileges and Duties of Parliamentarians", Journal
of Constitutional and Parliamentary Studies, 2001, Vol. XXXV, p. 17 Return to
Text