The legislature and judiciary are considered two important pillars of democracy. Consequently, democratic norms require that officers of both branches be granted some privilege. In India, these privileges are allocated to advocates and parliamentarians.

The privilege may be defined as an exceptional right and exemption. The expression “Privilege and Immunity”, under the Constitution of India and in the arena of Parliament, donates certain special and exceptional rights of Lok Sabha and Rajya Sabha or its individual members who are generally accepted as a necessity for the implementation of constitutional functions.

In the case of Raja Ram Pal vs. The Hon’ble Speaker Lok Sabha. Supreme Court in their own view defines the word “privilege” that it is immunity or a right provided to a specific person. In another way around what a person can not do in general, now he/she is eligible to do a certain act.

For example, being an Attorney General you have the right to watch any proceeding of any house, but not in the case of an ordinary person. Privilege consists of the known laws, customs, and usage of Parliament. Thus, the term privilege is referred to the special rights that are available to a different extent and in various forms for the members of Parliament throughout the world. However, the term applies to certain immunities enjoyed by both the houses of the Parliament collectively, and members of each house individually.

It is the privilege conferred on any member of parliament that he is immune from whatever he will say on the floor of the house, and in case of detention whether civil or criminal, no member shall be made liable and detained 40 days before and 40 days after the session of the house. But there is a condition to comply with the availment of these privileges. If a person ceased to be a member of Parliament, then the privileges are called off. So in order to enjoy immunities, one should have to be a member of any house of Parliament.

Advocates have an absolute privilege

Recently, during the course of the hearing, a few remarks of a Senior Advocate did not go down well with a businessman. Offended businessmen filed a defamation suit against the advocate. He sought Rs. 2 crore in compensation for, quote, “loss and harm caused to his reputation and goodwill.” His counsel argued that there is no statutory right granting absolute privilege to an advocate. The respondent argues against it.

The Delhi High Court upheld the freedom of speech privilege of the advocacy profession. Justice Mini Pushkarna even refused to look into the irrelevance or maliciousness of the statement.

The Court observed that court hearings are privileged occasions. Any statement made during those moments can’t be held to be eligible for libel or slander. Therefore, advocates can’t be put on trial for defamation. Justice Mini reasoned that “the justice system would be adversely affected if lawyers were to be in fear of the law themselves.”

She also expressed the fear that if such privileges were not provided, the system of justice would literally come to a halt since advocates would think more about their own protection than that of their clients. The same principles have previously been upheld in cases like the M.K. Parameswara Kurup, M.L. Ganesh, and B. Sumat Prasad Jain.

Corresponding rights of Parliamentarians

This almost absolute freedom of speech is not guaranteed to everyone in India. Apart from advocates, only public representatives have this right. Article 105(2) of the Indian Constitution provides it for parliamentarians. It explicitly states that a parliamentarian can literally say anything on the red carpet, and courts have no power to put him or her on trial for it.

In other words, no defamation suit can be filed against parliamentarians for anything they say on the floor of the parliament. Only the rules established by the respective houses can put a stop to it. In practical terms, only the expunction of remarks and temporary suspension from parliamentary proceedings are observed.

However, there is one rule that they have to abide by. Under Article 121, the rule is not to discuss the conduct of any High Court or Supreme Court Judge in the discharge of his duties. That is allowed only when there is a motion for the removal of that particular judge.

Freedom of Speech

The spirit of the parliamentary form of democracy is frank free and valiant discussions in the house of parliament. For authority like parliament, freedom of speech plays a very indispensable role that provides opportunities to the members of the houses to express their feelings without any sort of fear, or hesitation, being penalized for offenses such as defamation, innuendo, etc.. The recognition of the right to freedom of speech in parliament came to be known in the seventeenth century in the case of Sir John Elito.

The council of state i.e. Rajya Sabha in its XII report provides that a Parliament can be asked a question in any court of law or any place outside the parliament for making any disclosure or for any information display since it will amount to inference with the right to freedom of speech of that member. Subsequently, Lok Sabha has also propounded that it will amount to contempt of the house or breach of privilege if any suit is initiated against any member in a court of law for what he/she spoke on the floor of the house.

The Supreme court case of Tej Kiran Jain V. Sanjeeva Reddy held that “once it is recognised that the parliament was in session and its business being transacted, anything said during the clause of that transaction was completely immune from any proceeding in any court of law”.

Other privileges

Similarly, both branches of democracy enjoy their respective privileges from arrest as well. Section 135 of the Civil Procedure Code, 1908, states that advocates cannot be arrested in civil cases, whether they are traveling to or from a court or participating in court proceedings. This protection does not extend to criminal cases or instances of contempt of court.

For parliamentarians, the privilege of freedom from arrest depends on the date on which the house ends its proceedings. A Parliamentarian can’t be arrested in a civil case 40 days before or after the adjournment of proceedings. Furthermore, he or she cannot be arrested in Parliament.

Then Parliamentarians and advocates have no legal compulsion to do their designated work. If Parliamentarians don’t fulfill their promises, then they can’t be put on trial for that. Similarly, last year, the Karnataka High Court held that a litigant can’t sue his lawyer for cheating or fraud just because he lost the case. Apart from these recognized ones, there are some other social privileges that both advocates and Parliamentarians enjoy.

References:

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