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Introduction:

Parliament has various functions as entailed in the Constitution and such functions are further carried out by the member. The parliamentary privilege or immunity from certain processes is granted to them so that their duties are performed without any hindrance. The idea of this concept is, Members of the Parliament have a certain level of dignity and authority and this must not be diluted. The term ‘privilege’ means the grant of certain rights or immunity form certain procedures that are not available to the rest of the people. This exceptional right is given to make sure that the system works effectively and efficiently. These privileges do not discriminate and put the members on a different footing from the public unless it is in the interest of the Parliament. The fundamental rights are maintained and all people are treated equally. These privileges are provided to them when they are in their official capacity that is as a representative of the Member of the Parliament. Article 105 and 122 mainly grant such privileges and immunities to such members in legal proceedings.

Other countries such as the United Kingdom has the immunity of speaking freely on the floor of the house without fearing the violations in the Official Secrets Act that is laid down so that the system remains transparent and truthful. Canada in Section 4 of its Parliamentary of Canada Act, 1875 gives the Canadian parliament to decide its privileges and the limitation mentioned is that it must not exceed the privileges laid down by the British in its House of Commons.

Origin

Although the ancient time of India did not have any uniform political system, there are hints of parliamentary privileges found. In the time of Dharma, there were two groups namely Sabha and Samiti which would keep a check on the king. This means although the king or the rule-maker was immune to a lot of procedures, he was answerable to a group of people. The dignity, authority, and freedom of the kind was maintained but accountability was not compromised upon.

In the Government of India Act,1919 the bi-cameral Indian Legislature was formed where the houses were restricted to its legislative functions only. It identified the right to speech in the houses and immunity to the legislators from procedures in court. The right to vote was given to the lower house. In that situation when voting was not provided to everyone, embers of the legislature were recognized and exclusive rights were granted.

Further, the Government of India Act,1935 which brought in framed privileges in section 71 which freedom of speech and immunity from legal proceedings was provided. This was the first-time privilege as a concept was recognized, as before this it seemed like a culture.

The Indian provincial legislature had certain privileges that it granted such as immunity to legal proceedings concerning the submission of an assembly, the release of arrested members for the presence in the assembly, exemption from in-person appearance in court sessions, etc. Such rules were made so that the legislators could exercise their powers and work efficiently.

As the final Government of India Ac,1950 was passed where the transfer of power from the British to the Indians, there was freedom of these parliamentary privileges as well. Under Article 105 and 122, the parliamentary privileges were codified that administered further.

Under Administrative Law

The difference between constitutional law and administrative law is that the former is the supreme law and lays down the general principles that are to be followed, whereas the latter is a subordinate law that focuses on the distribution of authority. We can say that if the Constitution holds a perspective, the administration holds a plan. Both are essential yet distinct from each other. The privileges under the constitutional law are embodied in Article 105 that gives the members of the parliament immunity from the law outside the parliament when it is in session as that member needs to function under the Legislature. Immunity from court proceedings for anything said on the floor of the house, any vote given, etc.

The provisions under the administrative law give the government the upper hand when it comes to legal proceedings keeping in mind the interests of the government. The public order and the status of a government official are taken into consideration so that the authority is upheld but complete escape is also not provided.

Immunity from Producing Documents

Section 123 of the Indian Evidence Act, 1872 makes it clear that all documents are to be submitted so that justice is served. As all courts hear both the parties and weigh the evidence to finally come to a judgment, there must be complete disclosure of documents. Section 124 of the same act allows the Parliament to withhold any documents on the grounds of Official communications. Such unpublished official documents may not be disclosed unless with the consent of the head of such department. This to maintain public order and is a privilege given to government officials.

In the case of the State of Punjab v. Sodhi Sukhdev Singh,[1] it was held that the court may not hold any inquiry that may but such a document in question which may injure the public interest. The court has the authority to do a preliminary enquiry to understand the nature of the information in that document so that it can decide whether or not to allow this privilege under Section 124 or not. A landmark case that explained the withholding of documents was State of Uttar Pradesh v. Raj Narain[2] wherein it mentioned the intent of such privilege “Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all the relevant materials.

When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to the public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not ahead of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection.”

Immunity from Estoppel

The concept of estoppel came after the case of Sourujmull And Ors. v. The Ganges Manufacturing Co.[3] where the Calcutta High Court held the doctrine of estoppel is not limited to evidence and opinions and arguments can also lead to an influence. The principle of Estoppel must be used in the interest of public order and not against the Constitution of India or to defeat any provision of law[4]. The meaning of estoppel is ‘Shut the mouth’ having a French origin. This principle says that anything preached at the time of the offence cannot be denied by the same party in court as he is binding of whatever he says at the commission of the wrongdoing, as his views and advice would have influenced the plaintiff into causing himself damage.

The legal maxim that best explains the doctrine of estoppel is ‘Allgans Contraria Non Est Audiendus’. As administrative authorities a lot of policies are announced, suggestions are given which may or may not be considered by the public. The question is whether such advice or opinions of the government is binding or not. This privilege was given to the government very frequently such as in the case of Sankaranarayan v. Kerala[5] where it refused to apply the doctrine estoppel against the government when it came to agreement alterations between the government and employees. This doctrine was not applied and the government was given an upper hand. Finally, in India v. Anglo-Afghan Agencies Limited,[6] this doctrine was used against the Government to hold them accountable for the information they published. This privilege is available to the government if the Court thinks it fit.

Conclusion

The privileges under the administrative law is wholly dependent upon the Court, but such immunities may be claimed by the Members of Parliament if they fulfill the essentials under the section. Privileges are nothing but an exclusive right that is provided with an intent to continue the smooth functioning of the government. Such privileges and immunities may lead to abuse of power, which is why these are provided in a way that it can be used in its official capacity and the ultimate decision of granting such privilege is at the discretion of the court. The judgment of whether there is an abuse of such power that is taking place or such privilege is necessary keeping in mind public order, the interest of the government, and the smooth function of the legislature.


References:

[1] AIR 1961 SC 493

[2] AIR 1975 SC 865

[3] (1880) ILR 5 Cal 669

[4] Jatindra Prasad Das v. State of Orissa & Ors., MANU/OR/0225/2011

[5] AIR 1971 SC 1897

[6] AIR 1968 SC 718


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