Former Chief Justice of Rajasthan BP Beri describes Parliamentary privileges as a ‘bundle of rights residing in a legislature and its members for fearless functioning in the interest of the country’.
Privileges do not in any way indicate the exalted position of the House or its members. They can at best be described as rights, which are necessary for the effective functioning of a legislative body.
During the British Empire very few privileges were vested with Indian legislators on the grounds that Indians could misuse them. Indian legislators were empowered in 1919 and, subsequently, 1935. Punitive powers, however, remained with the House of Commons.
Things changed under the Indian Constitution. Members of Parliament now enjoy freedom of speech, immunity from proceedings in any court for anything said or any vote cast in Parliament, freedom from arrest in civil cases while the House is in session and 40 days before and after it commences.
MPs, however, are expected not to refer to matters which are sub judice, make personal allegations against other MPs or use language that is offensive, seditious or defamatory. In a foreword to a book on Parliamentary privileges, Chief Justice Beri spoke about the ‘thin dividing line’ between being outspoken and being abusive.
The privilege of freedom from arrest does not extend to criminal cases or preventive arrest. Parliament must, however, be informed.
In the case of K Ananda Nambiar versus the chief secretary of Madras (now Chennai), Nambiar, then an MP, challenged his detention on the grounds that he had been arrested while the House was in session. The Supreme Court rejected the petition saying an MP cannot claim special status; he is liable to be arrested like any ordinary citizen.
Since the House must be informed about the arrest of an MP, the police communicated Lok Sabha member Shibu Soren’s arrest to the House. Back in 1960, when Lok Sabha member Nath Pai in Belgaum was arrested, the police sent a telegram to the Speaker informing him about his arrest. In May 1974, the House received a telegram from West Bengal about the arrest of Lok Sabha member Gadadhar Saha.
MPs are, however, ‘safe’ within the precincts of the House since no legal action can be taken inside Parliament unless there is an emergency and the arrest cannot be delayed. In such cases, the Speaker’s permission is necessary.
Before independence, cases of detention of political offenders figured in Parliament as adjournment motions. Dr Parveen Q Khan, author and scholar, cites two cases: SC Mitra who, when he was detained, led Jawaharlal Nehru to move an adjournment motion in the House which was adopted by 64 votes against 46 to protest against the violation of a member’s privilege. A similar motion was adopted on January 22, 1935 to protest against preventing member SC Bose from attending the session.