Immunity against action for mp and mla SC appoints amicus Curiae
- November 16, 2022
- Posted by: OptimizeIAS Team
- Category: DPN Topics
No Comments
Immunity against action for mp and mla SC appoints amicus Curiae
Subject: Polity
Context:
- The Supreme Court on Tuesday appointed senior advocate P S Patwalia as amicus curiae to assist it in examining whether an MP or MLA can claim immunity from criminal prosecution for taking bribe to make a speech or vote in the Legislative Assembly or Parliament
What is the issue:
- In 2019, a bench headed by then chief justice Ranjan Gogoi and comprising Justices S. Abdul Nazeer and Sanjiv Khanna had referred this question to a five-judge bench, the crucial question, noting it had “wide ramification” and was of “substantial public importance”.
- The three-judge bench had then said it will revisit its 24-year-old verdict in the sensational Jharkhand Mukti Morcha (JMM) bribery case on an appeal filed by Sita Soren, a JMM MLA from Jama constituency in Jharkhand.
- The top court, in its 1998 five-judge constitution bench verdict delivered in the V. Narasimha Rao versus CBI case, had held that parliamentarians had immunity under the Constitution against criminal prosecution for any speech made and vote cast inside the house.
What is the privileges of Members of Parliament
- Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
- These privileges are defined in Article 105 of the Indian Constitution.
- Under these privileges, the members of Parliament are exempted from any civil liability but not criminal liability for any statement made or act done in the course of their duties.
- The privileges are claimed only when the person is a member of the house.
- As soon as the membership ends the privileges are said to be called off.
- Parliament has not made any special law to exhaustively codify all the privileges. They are rather based on five sources:
- Constitutional provisions
- Various laws made by Parliament
- Rules of both the Houses
- Parliamentary conventions
- Judicial interpretations
What are some privileges enjoyed the member of Parliament:
- Freedom of Speech in Parliament:
- It has been guaranteed under Article 105(1) of the Indian constitution. But freedom is subject to rules and orders which regulate the proceedings of the parliament.
- Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
- Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court.
- Freedom from Arrest:
- The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session.
- No member can be arrested from the limits of the parliament without the permission of the house to which he/she belongs so that there is no hindrance in performing their duties.
- If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.
- But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention act, the Essential Services Maintenance Act , the National Security Act , or any such act.
- Right to Prohibit the Publication of Proceedings:
- Article 105(2) of the Constitution states that no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house.
- For paramount and national importance, it is essential that the proceedings should be communicated to the public to make them aware of what is going on in the parliament.
- Right to Exclude Strangers:
- The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings.
- What are some key rulings on the privileges:
- Dr Zakir Hussain case(1966): In 1966 by Dr Zakir Hussain it mentioned that Members of Parliament do enjoy certain privileges so that they can perform their duties.
- K Anandan Nambiar and another: The Supreme Court of India held that the true Constitutional position is that so far as a valid order of detention is concerned, a Member of Parliament can claim no special status higher than that of an ordinary citizen and is as much liable to be arrested, detained or questioned even during the Session.
- State of Kerala Vs K. Ajith and Others: The Supreme Court observed that “privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.