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E:\2013\HB Folder\Hb 475\HB COMMONWEALTH PARLIAMENTARY ASSOCIATION Law of Parliamentary Privileges (With Special reference to Maharashtra Legislature) Maharashtra Legislature Secretariat Dr. Anant Kalse, Principal Secretary, Maharashtra Legislature Secretariat Vidhan Bhavan Mumbai / Nagpur Law of Parliamentary Privileges (With Special reference to Maharashtra Legislature) Maharashtra Legislature Secretariat Dr. Anant Kalse, Principal Secretary, Maharashtra Legislature Secretariat HB 475-1 PREFACE Maharashtra Legislature is one of the leading and pioneering Legislatures in India and occupies the pride of place and position in our country, which is celebrating its Platinum Jubilee Year. The glorious history of 75 years of Maharashtra Legislature is replete with many outstanding personalities who in subsequent years have etched their names in our memory. Known for their meaningful contribution in making the democratic process of India a wonderful saga of socio-economic justice, they have established a high standard of parliamentary behaviour and conduct. Their debating skills, intellectual inputs and maintaining the dignity of the proceedings guide us like a beacon even today. An attempt is being made by this publication to provide a glimpse of the Parliamentary Privileges and I hope that it would be useful to the Hon. Members of Legislature. The topics in this publication have been grouped under convenient subject heads to facilitate quick and easy reference. While every care has been taken to ensure accuracy and objectivity of the publication, readers are requested to rely on the original publications for authenticity and authoritative information. I must express my sincere thanks to Hon. the Chairman of Maharashtra Legislative Council, Shri Shivajirao Deshmukh and Hon. the Speaker of Maharashtra Legislative Assembly, Shri Dilip Walse-Patil for encouraging and giving me an opportunity to publish this book. I have been greatly assisted by Shri N.G.Kale, Deputy Secretary (Law) and Shri Umesh Shinde, Section Officer to accomplish the complicated work of checking references from original and to make the book free from faults and errors as far as possible, especially Shri N.G.Kale, Deputy Secretary (Law), has been working throughout with me and is always ready to render his valuable assistance to me who deserves thanks for arranging publication of this book. I earnestly hope that this brief compilation will be read with interest and will prove quite useful to understand intricacies of the Law of Parliamentary Privileges. Any suggestions from the readers are wel-come. Dr. ANANT KALSE, Vidhan Bhavan, Principal Secretary, Mumbai. Maharashtra Legislature Secretariat. HB 475-1a About the Author Dr. Anant Namdeorao Kalse, B.Sc., LL.M., Ph.D. (LAW), Mumbai University, is holding the post of Principal Secretary in the Maharahtra Legislature Secretariat and also assuming office of Secretary; Commonwealth Parliamentary Association (CPA), Maharashtra Branch. He attended various conferences and seminars of Presiding Officers and Secretaries of Legislative Bodies in India and also visited London, Paris, Austrialia, New Zealand, Singapore, France, Italy, Belgium, Holland, Switzerland and Geneva, United Nations, Nigeria, Kenia and China with Parliamentary Delegations. He delivered Lectures on Parliamentary Practice and Procedure, Constitutional Law, Administrative Law, Law of Torts, Consumer Protection, Human Rights, Interpretation of statutes, International Law and Feministic Jurisprudence. He is a visiting faculty at Mumbai University Post Graduate Law Department, SNDT University Post Graduate Law Department, Government Law College, Mumbai, K.C. Law College, Mumbai, Yashwantrao Chavan Academy of Development Administration Institute,Pune, Indian Institute of Public Administration, Mantralaya, Mumbai. He has been Returning Officer for the Biennial Elections to the Council of States (Rajya Sabha) and Maharashtra Legislative Council since 1992 and also Presidential Election. He has already published various books on Parliamentary Practice and Procedure with Special reference to Maharashtra Legislature, Law Making Process – An Introduction, Legislative Procedure and Parliamentary Privileges – A Brief Overview, An Outline of Comparative Analysis of the Leading Constitutions of the world with special reference to Indian Constitution, Nagpur Session- Myth and Reality – An overview, Dr.Babasaheb Ambedkar Speech before the Constituent Assembly of India on 4th November 1948 – Compilation, Salient Features of Constitution of India and Financial Business – An Overview, Parliamentary Proceeding – A Brief Overview and Salient features of Constitution of India & contribution of State Legislature in the development of State & its achievements. ºÉƺÉnùÒªÉ EòɨÉEòÉVÉ {ÉrùiÉÒ ´É ¦ÉÉ®úiÉÒªÉ ±ÉÉäEò¶ÉɽþÒSÉä ¨É½þi´É, ºÉƺÉnùÒªÉ ±ÉÉäEò¶ÉɽþÒSÉÒ ´Éèʶɹ]äõ ´É Ê´ÉvÉÒ¨ÉÆb÷³ýÉSÉä EòɨÉEòÉVÉ, ºÉʨÉiÉÒ {ÉrùiÉÒ, ºÉƺÉnùÒªÉ EòɨÉEòÉVÉÉSÉÉ +Éi¨ÉÉ. INDEX Sr. Subject Page No No. 1 History and Origin 1-17 2 Privileges Law in Other Countries and Constitutional Provisions 18-34 3 Indian Historical Background and Constitutional Provisions 35-40 4 Privilege of Freedom from Arrest 41-44 5 Contempt 45-54 6 Privileges and Judiciary (Keshav Singh and Raja Ram Pal Cases) 55-70 7 Codification of Privileges 71-76 8 Analysis and Conclusion 77-79 9 Important Privileges Cases dealt with by Maharashtra Legislative 80-100 Assembly. 10 Latest Cases relating to Breach of Privilege and Contempt of 101-106 Maharashtra Legislative Assembly. 11 Important Privileges Cases In Maharashtra Legislative Council 107-118 12 Land Mark Cases in Parliament and Other State Legislatures 119-178 13 Bibliography 179-180 1 PARLIAMENTARY PRIVILEGES CHAPTER – 1 HISTORY & ORIGIN What is Parliamentary Privilege :— A privilege is essentially a private advantage in law enjoyed by a person or a class of persons or an association which is not enjoyed by others. Looked at from this aspect, privilege consists of that bundle of advantages which members of both Houses enjoy or have at one time enjoyed to a greater extent than their fellow citizens that is freedom to access to Westminster, freedom from arrest or process, freedom from liability in the courts for what they say or do in Parliament. From another point of view, Parliamentary Privilege is the special dignity and authority enjoyed by each House in its corporate capacity such as its right to control its own proceedings and to punish both members and strangers for contempt. Any Parliament, it is to function properly, must have some privileges which will ensure freedom from outside interference. What constitutes Privilege :— Sir Erskine May has answered the question ‘What constitutes privilege?’ in the following manner [See: Erskine May, Parliamentary Practice, 16th edn. (London: Butterworths, 1957) in ‘Chapter III: General View of the Privilege of Parliament ‘ at p. 42] : Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament , and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land is, to a certain extent, an exemption from the ordinary law. The particular privileges of the Commons have been defined as :- “The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.” The privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity. In Hatsell’s Collection of Cases of Privileges of Parliament (1776), Parliamentary privileges have been defined as those rights which are ‘absolutely necessary for the due execution of its powers’. Need and objectives of Parliamentary privileges :— The objective of the Parliamentary privilege is to safeguard the freedom, the authority and the dignity of the institution of Parliament and its members. Thus privileges are enjoyed by the individual members because the House cannot perform its functions without unimpeded use of the services of its members and by each House for the protection of its members and the vindication of its own authority and dignity. Thus it’s the essence of Parliamentary system of government that the peoples’ representative should be free to express themselves without fear of legal consequences. The court has no say in the matter and should really have none. The immunity has been granted to protect the integrity of the legislative process by ensuring the independence of individual legislators. HB 475-2 2 When Privileges are supposed to be exercised :— They are supposed to be exercised in order to ensure that legislative functions can be exercised effectively, without undue obstructions. These functions include the right of members to speak and vote on the floor of the House as well as the proceedings of various legislative committees. In this respect, privileges can be exercised to protect persons engaged as administrative employees as well. The important consideration for scrutinising the exercise of legislative privileges is whether the same was necessary to safeguard
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