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The Parliament

The parliament


The parliament is the union legislature of India. It consist of e president and two houses: Lok sabha and Rajya sabha. Thus, the union legislature is bicameral. Bicameralisms is chosen with a view that there should be parity between the direct representatives of the people and the representation of states from where they are coming.


Lok sabha


Lok sabha is the ‘popular house’ of the Indian parliament. It consists of representatives elected by the people on the basis of universal adult franchise through secret ballot.

The maximum strength of Lok sabha has been fixed at 552, out of which 530 represent the states and 20 represent the union territories (Article. 81). In addition to this, the president can nominated two members of the Anglo-Indian community if, in his opinion, this community is not adequately represented in the Lok sabha (Article. 331).

The number of members from each state depends on its population. Thus, U.P. has the largest number of Lok sabha members. M.P.s and M.L.A.s have been held to be ‘public servants’ (P.V. Narasimha Rao case).

The Lok sabha, unless sooner dissolved, shall continue for five years from the date appointee not for the first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the house: provided that the said period may, while a proclamation of emergency is in operation, he extended by parliament by law for a period not exceeding one year at a time and not exceeding one year at a time and not extending in any case beyond a period of six months after the proclamation has ceased to operate [Article. 83(2)].


Qualifications for M.P. (Art. 84)

To be eligible for membership of the Lok sabha i.e. house of the people, a person —


. Must be a citizen of India

. Make and subscribe an oath or affirmation expressing his true faith and allegiance

to the constitution and for upholding the sovereignty and integrity in India.

.Should be at least 25 years of age.

.should be registered as a voter in any parliamentary constituency (Representation of the people Act, 1951).

.should possess such other qualifications as may be prescribed by parliament.


Every member of parliament has to take an oath before the president or some person appointed by the president for this purpose. Unless a member takes an oath he cannot sit in the house. If he does so, a penalty can be imposed on him.


Disqualifications of M.P. (Art. 102)

1. A person shall be disqualified for being chosen as, and for being a member of either House of Parliament —

(a) if he holds any office of profit under the government of India or the government of

any state, other than an office declared by parliament by law not to disqualify its

holder.

(b) if he is of unsound mind and stands so declared by a competent court.

(c) if he is an undischarged insolvent.

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign

sate, or is under an acknowledgement of allegiance or adherence to a foreign

state.

(e) if he is so disqualified by or under any law made by parliament (see below,

the representation of people act 1951.

Explanations - for the purposes of this clause a person shall not be deemed to hold an office of profit under the govt. of India or the govt. of any state by reason only that he is a minister either for the union or for such state.


1. A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the tenth schedule on the ground of defection.

In addition to the above disqualification, the representation of peoples act, 1951, prescribe the following disqualification-

(a) if he is guilty of corrupt or illegal practices at the election.

(b) if he has been convicted by a court n India for any offence resulting in

imprisonment for 2 more years.

(c) if he has failed to lodge a return of election expenses within the time and in manner required by the act.

(d) if he has any share or interest in a govt. contract for the supply of goods, or for the execution of any work or for the purpose of any service.

(e) if he is a director or managing agent or holds any office of profit in a govt. corporation in which the government is holding 25 per cent shares.

(f) if he has been dismissed from the government service for corruption or disloyalty to the state.


[none of the above disqualification, however, operate for a period of more than five years.]


The question of disqualification (for being chosen as and for being a member of either House of Parliament, except where disqualification is under tenth schedule i.e. Anti-Defection law) is decided by the president with the advice of the election commission. Member of the loan sabha are elected for a term of five years but the term can be cut short if the president dissolves the house earlier on the recommendation of the prime minister.

A member of a parliament can resign by writing to the chairman/ speaker as the case may be. The seat of a member can also be declared vacant if he absent himself from meeting of the house for 60 days without permission.


Rajya sabha


The raj sabha is the upper house of the parliament. It consists of representatives of the states and union territories. The maximum strength of the Rajya sabha is 250. Of these, 238 represent the states and union territories and rest i.e. 12 nominated by the president from amongst person who have distinguished themselves in the field of literature, art, science, social service, etc. (Art. 80). Representatives of the states are elected by members of state legislative assemblies on the basis of proportional representation through a single transferable vote. It noteworthly that in Rajya sabha, the states have been provided representation on the basis of their population.


Qualifications - as regards qualifications for membership of the Rajya sabha, the candidates must:

. Be a citizen of India.

.Be 30 years of age or more; and

.posses such other qualifications as may be prescribed by the parliament from time

to time.


Rajya sabha shall not be subject to dissolution. The members of the Rajya sabha are elected for a term of six years; even though the Rajya sabha a permanent house, one third of the members retire every two years in accordance with the provision made in that behalf by parliament by law [Art. 83(1)].

The Vice President is the ex-officio chairman of the Rajya sabha. In addition, the Rajya Sabha elects a deputy chairman from amongst its members, who presides over the meeting in the absence of the vice-president.


Session

of parliament

The session of parliament is convened at the discretion of the president. The president shall form time to time summon each House of Parliament to meet at such time and place as he thinks fit. However, there should not be a gap of more than 6 months between two sessions [Article. 85(1)]

The Right to prorogue the two houses or either house (end of a session) also rests with the president [Art. 85(2)]. The pending bills and other business of the house do to lapse on the propagation of a session [Art. 107(3)]. When it meets after prorogation, the house takes up these pending matters.


In case of ‘dissolution’ of Lok sabha [Art. 85(2)], a fresh house is reconstituted. If any bill is pending in Rajya Sabha but has not been passed by Lok Sabha, it does not lapse at the dissolution of the Lok Sabha [Art. 107(40)], but other bills lapse. Thus, a bill pending in the Lok Sabha or which having been passed by the Lok Sabha is pending in Rajya Sabha, Shall Subject to the provisions of Article. 108 (joint session), lapse on a dissolution of the Lok Sabha [Art. 107(5)].


Joint session (Art. 108) - the president call ‘joint session’ of the two houses (discussed later).


Powers of parliament.

Parliament legislature on subjects included in the union and concurrent lists. It can also legislate on subjects included in the state list if :

1. The Rajya sabha passes a resolution by a two-third majority that it is in the national interest that parliament should legislate on the state subject;

2. If the legislature of two or more states recommended to parliament to legislate.

3. For implementation of treaties and agreements with foreign power; and

4. During the proclamation of emergency on account of threat to the security of India or a breakdown of constitutional machinery in the state.

5. Parliament exercises complete control over the union finance. No taxes can be levied or expenditure incurred without its approval.


• Parliament exercises complete control over the executive. The council of minister, which is the real executive, is accountable to parliament and stays in office as long as it enjoys the confidence of parliament i.e. (Lok Sabha). If the parliament express lack of confidence in the council of ministers, it has to resign. The parliament exercises control over govt. in numerous ways (‘parliamentary devices’) viz. through questions, supplementary questions, resolutions, and adjournment motions, committees etc. Actually, on account of rigid party discipline, the members of parliament do not exercise any real control over the council of ministers and readily endorse its policies and actions.


• Parliament plays a major role in the amendments of the constitution. Major portions of it can be amended by the parliament alone by a simple majority. Only in respect of limited member of provisions can amendments be carried out by parliament with the approval of the legislatures of majority of states.


• The parliament elects the vice-president and can initiate impeachment proceeding against the president of India.


• the parliament recommends the creation of new all India services.


• parliament reserves the right to recommend removal of judges of Supreme Court and High Court and High Courts to the president.


• parliament’s approval is essential for the continuance of proclamation of emergency made by president.

Though the. Indian parliament enjoys very extensive powers, it cannot be regarded as sovereign body because it has to operate within the jurisdiction earmarked for It by the constitution. Further the Supreme Court can declare a law passed by the parliament as void; the grant of certain fundamental rights to the citizens acts as a restraint to its authority. It is the constitution that is sovereign in India.


Lok sabha v Rajya sabha - as noted above in ordinary bills, both Lok sabha and Rajya sabha have equal powers. In case of money bills, Lok sabha enjoys a superior position. Rajya sabha, however ha two special powers. First, it can empower parliament to make legislation with respect to a matter in the state list. Second , it can empower parliament to creat new All-India Services.


Legislative procedure —

‘Legislative procedure’ or the procedure followed for making laws, initiated by the introduction of the proposals for legislation in the form of a ‘’Bills’’.


Bill -

A ‘Bill’ is the draft of a legislative proposal which can be introduced in either House of Parliament (except money/finance bill , which can be introduced only in Lok sabha) [article . 107(1)]. It can become law only when it has received thr approval of the parliament’s both Houses {art. 107(2)} and assent of the president (article. 111). A bill may be introduced by a minister or a private members.


1. Ordinary bill (Art. 107)

An ordinary bill may be defined as ‘’that bill which is nighter a money bill nor a financial bill involving expenditure from the consolidated fund’’.

An ‘ordinary Bill’ may be introduced in either hose of parliament (Art. 196 similarly provide for in case of state legislature). When it is passed by that house, the Bill is transmitted to the other house. If the Bill has been agreed to by both houses (with or without amendments), the Bill is send for the president’s assent. Thus, in case of ordinary bills, Rajya sabha is co equal of Lok sabha.

It may be noted that a bill passes through various stages (in each House of Parliament) like first reading, second reading, committee stages, report stages, and third reading. After introduction —

First reading -(no discussion take place at this stage), the motion is moved that the Bill be taken in to consideration, or it be referred to a select committee, or it be circulated for the purpose of eliciting public opinion on it.

In ‘second reading’ the general discussion of the principles of the Bill and its clause-by-clause consideration occurs.

The ‘Third Reading’ is confined to limited discussion for passing or rejection of a Bill as a whole.


Joint session in a case of deadlock on a Bill (Art. 108)


If there is any disagreement between the two houses over the Bill, it cannot be deemed to have been passed by both houses. The president can call ‘joint session’ of the two houses if a Bill (other than a money bill) passed by one house is rejected by the other house, or if the amendments proposed to bill by one house and not acceptable to the other, or if the other house does not take any action on a Bill remitted to it for six months (unless the bill ha lapsed by reason of a dissolution of the Lok sabha).


The president shall notify to the houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill. Where the president has notified his intention of summoning the houses to meet in to a joint sitting, nighter house shall proceed further with the Bill.


The joint session of parliament is presided over by the speaker of the Lok sabha. A decision is taken by a majority of the total number of members of both houses present and voting. Thus, the will of the Lok sabha prevails as the numbers of member of Lok sabha is greater. Till the date, joint session has been called for three times only.


The Bill shall be deemed to have been passed with amendments, if any , as are agreed to at the joint sitting. No new amendments except those on which the disagreement had resulted in the two houses and which are made necessary by the delay in the passage of the Bill, shall be proposed at the joint sitting.


A joint sitting of two houses shall be held even if the Lok sabha has been dissolved provided the president had notified his intention to hold the joint sitting before the dissolution of the house take place. Thus, the dissolution of the Lok sabha shall have no effect on the joint sitting of the houses and the bill passed at the joint sitting shall be deemed t have been passed by both house. ‘’It is the only case. In which the member of a dissolved house take part in the passing of a Bill.


Money Bills (Art. 110)

Under art. 110(1), a bill is deemed to be a money bill if it contains only provisions dealing with all or any of the following.

1. The impositions, abolition, remission, alteration, or regulation of any tax;

2. The regulation of the borrowing of the money or the giving of any guarantee by the government of India;

3. The custody of the consolidated/ contingency fun of India, the payment of moneys into the withdrawal of moneys From any such fund;

4. The appropriation of moneys out of the consolidated fund of India.

5. The declaring of any such expenditure charge on the consolidated fund of India or the increasing of the amount of any such expenditure.

6. The receipt of money on account of consolidated fund of India or the custody or issue issue of such money or the audit of the accounts of the Union/ state; or ,

7. Any matter incidental to any of the matters specified in sub-clause (a) to (f).


A bill is not deemed to be money bill by reason only that it provides for the imposition of fines or other Pecuniary penalties, or for the demand or payment of fees for service rendered, or by reason that it provides for the imposition, abolition, remission, alteration, or regulation of any tax by any local authority / body for local purpose.

[Art. 199(1) similarly provides for in case of state legislature.


Special procedure in respect of money Bill (Art. 109)


Certification of money Bill - money Bill can be introduced on the recommendation of the president of India in the Lok sabha only. If any question arises whether a Bill is a Money Bill or not, the decision of the speaker there on in final. The certificate of the speaker to the effect that a bill is a money Bill, is to be endorsed and signed by him when it is transmitted to Rajya Sabha (after it has been passed by Lok Sabha) and also when it presented to the president for his assent. The purpose of. Making endorsement is to limit the powers of the Rajya sabha on the money Bill.


Role of Rajya sabha with regard. To money Bill - in money Bill, Lok. Sabha enjoys a pre-eminent position. A money bill cannot be introduced in the Rajya sabha and it has no power to reject or amend it, Rajya sabha and it has no power to reject or amend it. Rajya sabha is required to return a money Bill passed and transmitted by Lok sabha within a period of 14 days from the date of its receipt. Rajya sabha may return a money Bill transmitted to it with or without its recommendations: -


1. If a money bill is returned by Rajya sabha without any recommendation, it is presented to the president for his assent.

2. If Lok sabha accept all or any of the amendments recommended by rajya sabha, the bill is deemed to have been passed by both the Houses of Parliament.

3. If the Loksabha does not accept any of the amendments recommended by Rajya sabha, the money bill is deemed to have been passed by both the Houses of Parliament in the form in which it was passed by Lok sabha without any of the amendments recommended by Rajya sabha and it is presented to the president for his assent.

4. If the Rajya sabha does not return money bill within the prescribed period of 14 days, the bill is deemed to have been passed by both the Houses of Parliament at the expiry of the said period in the form in which it was passed by Lok sabha and is presented to the president for his assent.

5. The president may either give or withhold his assent to a money Bill. Under the constitution, a money bill cannot be returned to the house by the president for reconsideration.

[Art. 198 similarly provides for ‘special procedure for passing a money Bill’ in case of state legislature.]


Finance Bill -

It is a secret Bill introduced in Loksabha every year immediately after the presentation of the general budget to give effect to the financial proposals of the government of India for the following financial year. Finance Bill are treated s money Bill as they substantially deal with amendments to various tax laws. Further, like money Bills, finance bills, can not be introduced in the Loksabha without prior recommendation of the president. They cannot be introduced in the Rajya sabha.


However, in recent to the other matters, a finance Bill is like an ordinary Bill. When the finance Bill is passed by the Lok sabha, it is transmitted to the Rajya sabha for its passing. A finance Bill cannot be presented to the president for its assent unless both the house have passed it. Thus, a finance Bill is a mixture of an ordinary bill and money bill.


A Bill involving expenditure

from consolidated fund of India [Art. 117(3)]]

‘A Bill which , if enacted and brought and brought into operation, would involve expenditure from the consolidated fund of India shall not be passed by either House of Parliament unless the president ha recommended to that house the consideration of the bill.


Thus, such a Bill can be introduced, like an ordinary Bill, in either House of Parliament . Though no prior recommendation of the president of the president is required for introduction, such a bill cannot be passed by either house unless the president has recommended to that house the consideration of the Bill.


[Art. 207(3) similarly provides for in a case of state legislature i.e. a bill involving ‘expenditure from the consolidated fund of the state’.]


Appropriation Bill

It is introduced in Lok sabha immediately after the voting of the relevant demands for grants. Such Bills are categorise as ‘money Bills’ as they seek to authorise appropriation from the consolidated fund of India of all money required to meet the grants made by the house and the expenditure charged on the consolidated fund of India.

Art. 114(1) lays down that as soon as may be after the grants under Art. 113 have been made by the Lok sabha, there hall be introduces a bill to provide for the appropriation out of the consolidated fund of India of all moneys required to meet -

(a) the grants so made by the Lok sabha

(b)the expenditure charged on the consolidated fund of India but not exceeding in any case the amount shown in the statement previously laid before parliament.


(2)no amendments shall be proposed to any such bill in either House of Parliament which will have the effect of varying the amount or altering the designation of any grant so made or of varying the amount of any expenditure charged on the consolidated fund of India.


(3)subject to the provision of Arts. 115 and 116,no money shall be withdrawn from the consolidated fund of India except under appropriation made by law passed in accordance with the provisions of this article.



Consolidated / contingency fund

-

All the money received by the union govt. is credited into two funds: the ‘consolidated fund’ and the ‘public account of India’. All revenues received by govt., loans raised by it and also its receipts from recoveries of loans granted by it are deposited in the ‘consolidated fund’. No amount can be withdrawn from the fund without authorisation from parliament via Appropriation Act.


The ‘public account’ gets all other public moneys such as deposits, provident fund, postal savings, and moneys received by or deposit with public offices and the courts. Money can be withdrawn from the public account without geeking an appropriation act passed by the parliament (Art.. 266).


Under the constitution, certain items of expenditure Loke emoluments of the president, salaries and allowances of the chairman/ deputy chairman (Rajya sabha) and the speaker / deputy speaker (Lok sabha), salaries, allowances and pensions of the judges of the Supreme Court, etc. (See above) are ‘’charged on the consolidated fund”.

Occasion may arise when govt. may have to meet urgent unforeseen expenditure pending authorisation from parliament. The ‘contingency fund’ thus placed at the disposal of the president to incur such expenditure. Parliamentary approval for such expenditure and for withdrawal of an equivalent amount fro the consolidated fund is subsequently obtained.


[in each state, similarly, there is a consolidated fund and contingency fund. The governors salary and allowances are given from the consolidated fund of the state.]


Votes on Account/votes of credit/exceptional grants -



As the whole process of budget, beginning with the presentation and ending with discussion and voting of demands for grants and passing of appropriation bill and finance bill, generally goes beyond the current financial year, a provision has been made in the constitution empowering the Lok sabha to make any grant in advance through a ‘vote on account’ to enable the govt. to carry on its business. Normally the vote on account is taken for two months. During an election year, it may be taken fora period longer than two months.


Art. 116(1)(a) provides that the Lok sabha shall have power to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed in Art. 113 for the voting of such grant and the passing of the law in accordance with the provision of Art. 114 n relation to that expendature (‘Vote on Account’).


Art. 116(1)(b) provides that the Lok sabha shall have power to make a grant for meeting an unexpected demand upon the sources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stand with the details ordinarily given in an annual financial statements (‘Vote on Account’).


Art. 116(1)(c) provides that the Lok sabha shall have power to make an exceptional grant which forms no part of the current service of any financial year; and parliament shall have power to authorise by law the withdrawal of moneys from the consolidated fund of India for the purpose for which the said grants are made (‘exceptional grants’).


State legislature


The state legislature consists of the governor and one or two houses. If the state has only one house, it is known as legislative assembly (‘Vidhan parishad’) (Art. 168). At present, these states have a bicameral legislature - Andhra Pradesh, Bihar, Jammu and Kashmir, Karnataka, Maharashtra, and Uttar Pradesh. All the other state have only one house.


Legislative councils can be created or abolished in a state by parliament on the recommendation of the legislative Assembly of the concerned state. Also, the actual strength of each house is fixed by the parliament. The parliament has abolished the legislative councils in Tamil Nadu, Punjab and West Bengal. In 2007, the Andhra Pradesh legislative council which was abolished in 1985 has been received by an Act of parliament. In M.P., there is no legislative council because the relevant amendment to constitute it has not been brought into force.


Legislative assembly

This is the ‘popular house’ of the state legislature and consists of directly elected representatives of the people. The strength of the legislative assembly varies from 60 to 500 in different states according to population [Art. 170(1)]. Also, the governor has the power to nominate one member of the Anglo-Indian community legislative assembly of his state (Art. 333). Under Art. 332, seats can be reserved for SCs/STs in legislative Assemblies.

The assembly enjoys a term of five years but can be dissolved earlier by the governor on the request of the chief-minister. Likewise its term can be extended for any period not exceeding one year at a time by the parliament during. National emergency. The term cannot be extended beyond a period of six months after the proclamation of emergency has ended (Art. 172).


Qualification for M.L.A. (Art. 173)

A person can become a member of the legislative assembly only if he:

• Is a citizen of India (and makes and subscribe before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the third schedule);

• Is more than 25years of age ;

• Possesses such qualification a may be prescribed by or under the law enacted by parliament.


Legislative council -

It is the ‘upper house’ of the state legislature and contains various categories of members. It has members elected by the by the legislative assembly (one-third), members elected by local bodies (one-third), members elected by teachers(one-twelfth), members elected by universities graduates (one-twelfth), members nominated by the governor from amongst those having special knowledge or practical experience in matters such as literature, science, art, cooperative movement, and social service (one-sixth) [Art. 171].


The maximum strength of the legislative council can be one-third the total membership of the legislative Assembly of that stat, but is no case less than 40. The legislative council is a permanent body and can not be dissolved. It enjoys a term of six years with one-third of its members retiring every 2 year. The council elects a chairman Nd vice-chairman from amongst its members.


To be eligible for membership of the legislative council, a person (Art. 173):

• Must be a citizen of India;

• Must be more than 30 years of age;

• Must possess such other qualifications as may be prescribed by parliament from time to time.


Disqualification for membership of state legislature (Art. 191)


Art. 191(1) lays down that a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly or legislative council of a state -

1. If he holds any office of profit under the govt. of India or the govt. of any state.

2. If he is of sound mind and stands so declared by a competent court;

3. If he is an un-discharged insolvent;

4. If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state;

5. If he is so disqualified by or under any law made by parliament.


Explanation - for the purpose of this clause, a person shall not be deemed to hold an office of profit under the government of India or the govt. of any state by reason only that he is a minister either for the union or for such state.


Art. 191(2) Lays down that a person shall be disqualified for being a member of the legislative assembly or legislative council of a state if he is so disqualified under the tenth schedule (i.e. on the ground of defection).


If any question arises as to whether a member of a house of the legislature of a state has become subject to any of the disqualification mentioned in clause (1) of Art. 191, the question shall be referred for the decision of the governor and his decision shall be final. Before giving any decision on such question, the governor shall obtain the opinion of the election commission and shall act according to such opinion (Art. 192). If any question raised as to whether a member of a house has become subject to any of the disqualifications use the tenth schedule, the question shall be referred to the chairman or the speaker of the house, whose decision shall be final.


It may be noted that rut. 192 is applicable only to disqualification to which a member becomes subject after he is elected as such. As regards the disqualifications which arose long before his election, neither the governor nor the election commission has jurisdiction under Art. 192. Such a matter can only be raised in an election petition before the court.


Powers of the state legislature —

The state legislature enjoys the following powers :


⁃ it can legislate on subjects contained in the state list as well as the concurrent list subjects must not conflict with the laws enacted by parliament on the same subject).

⁃ The state legislature exercises complete control over state finances. No taxes can be levied or expenditure incurred by the state government without its approval.

⁃ The state legislature exercises control over the state council of ministers through questions, supplementary questions, by seeking information, by moving adjournment or censure motions, etc. it can even oust the council of ministers by passing a vote of no-confidence.

⁃ The state legislature participates in the election of the president of India.

⁃ It has a role in the amendments of the constitution in so far as certain provisions of the constitution can be amended only after ratification by the legislatures of the majority of states.

⁃ The state legislature considers reports of the public service commission, Comptroller and Auditor General, etc. pertaining to the state.



Parliamentary privileges —

‘Privilege implies a special or exceptional right or freedom or an immunity (exemption from some duty, burden or liability) enjoyed by a particular class of persons. Parliamentary/legislative privileges cannot ‘’certain rights accruing to each House of Parliament collectively and also to members individually without which it would not be possible to maintain either independence of action or the dignity and efficiency of a sovereign legislature’’. Thus, without such privileges the members could not discharge their functions properly.


‘Parliamentary privileges’ though not a part of the law of the land, is to a certain extent an exemption from the ordinary law [ Raja Ram Pal Singh v Hon‘ble speaker, Lok sabha (2007) 3 SCC 184].


Articles 105 and 194 of the constitution relates to the privileges, powers and immunities of parliament and its members and the state legislatures and their members respectively. These Articles expressly mention two privileges namely - ‘freedom of speech’ and ‘freedom of publication of proceedings’.


(1) Freedom of speech -

Art. 10591 declares: ‘’there shall be freedom of speech in parliament’’. Art. 194(1) contains a similar provision in respect of state legislature.


It is of the essence of parliamentary system of govt. that people’s representatives should be free to express themselves without fear of legal consequences. However, the freedom of speech of the members is subject to the provisions of the constitution and the rules and standing orders regulating the procedure of the parliament. For example, Art. 121 forbids discussion in parliament on the conduct of judges except on a motion for their removal (in Re Keshav Singh AIR 1965 SC 745). Again the freedom of speech is available to a member in respect of what he says within the house and not what he says outside.


The freedom of speech is also subject to the rules of procedure of a House made under Art. 203. Under rules 349 to 356 of the Lok Sabha use of un-parliamentary language or un-Parliamentary conduct of a member is prohibited.


Even though speech delivered by a member in the house may amount to contempt of court, no action an be taken against him in any court. Art. 122 specifically forbids any inquiry by courts into proceedings of parliament.


(2) Freedom of publication of proceedings —

Art. 105(2) {as well as Art. 194(2)} provides that ‘no member of parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee three of, and no person shall be so Liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.


The constitution 44th amendments Act, 1978 has put the immunity for publication of vary on a very sound footing. It has added Art. 361-A to the constitution which provides that ‘’no person shall be liable to any proceedings, civi or criminal, in any court in respect of either House of Parliament or the legislative Assembly (or either house of legislature of a state) unless the publication is proved to have been made with malice


The protection under Art. 105 (2) does not extend to publication made by private person without the authority of a house. Further, the publication by a newspaper of those the authority of a house. Further, the publication by a newspaper of those parts of speech of a member in the house which were ordered to be expunged by the speaker constituted breach of privilege of the house (searchlight case AIR 1959 SC 395).

In P.V Narasimha Rao v sate (CBI/SPF) (AIR 1998 SC 2120), a five judge Bench of SC by 3:2 majority held that the scope of protection of immunity available to the members of the parliament is quit wide and is not confined only against judicial proceedings but is available to them against all civil action and criminal proceedings for anything said or any vote given by them in the House of Parliament. The object of the protection is to enable members to speak their mind in parliament freely and fearlessly. The court held that the MPs who had taken bribe and voted in parliament against no-confidence motion (brought against the Narasimha Rao government) are entitled to the protection of Art. 152(2), and, are not answerable in court of law for alleged conspiracy and agreement. But the MPs who had given bribe and not voted on the no-confidence motion are not confined to in respect of anything said or any vote given within the house or any committee thereof.


In (S.R Chaudhari v State of Punjab (AIR 2001 SC 2707), it was held that the ‘non-member minister’ even during the period of ‘six months’ does not have the right to vote or the legislative immunity as provided by Art. 194(2). He also cannot draw the benefits of an MLA.


(3) other privileges -

In other respects, Art. 105(3) [as well as Art. 194(3)] Lays down that the powers, privileges and immunities of each House of Parliament and of the members thereof, shall be such as may from time to time be defined by parliament by law, and until so defined , those which existed before the coming into force of 44th amendments Act, 197, will be applicable. In other words, each house and its members in actual practice shall enjoy the powers and privileges (other than those specified in the constitution) that were available to the British House of Commons as on 26 January 1950. Thus, the privileges of the legislature must be confined.


‘Freedom from arrest’ is one such privilege; no members of the parliament/sate legislature shall be arrested or in prisoned in a civil proceeding during the session and a period of 40 days before and 40 days after the session of the house. This privilege doesn’t extend to arrest or imprisonment on a criminal charge or for the contempt of court or to preventive detention. Further, a member cannot be summoned, without leave of house, to give evidence as. With ness while the parliament is in session.


In K Anandan Nambiar v Chief Secretary, govt of Madras (AIR 1966 SC 657), it was held that if a member was detained under a valid detention order, he could claim no special status higher than that of an ordinary citizen and that he was much liable to be arrested and detained under it as any other citizen. If an order detestation validity prevents a member from attending a session of parliament, no occasion would arise for the exercise by him the right of freedom of speech.

‘Right to exclude strangers /non-Members’ and ‘Right to regulate internal proceedings’ are other such privileges. Similarly, a house has the ‘right to prohibit the publication of its reports, debates or other proceedings’ the rules of procedure of the houses empowers the chairperson to expunge (delete) any part of the proceeding of the house.


The house has power to punish a person (whether member or stranger) for its ‘contempt’ or for ‘breach of privileges’. This power is truly described as the ‘’keystone of parliamentary privileges’’, for this power is used by the house to enforce its privileges. The expression ‘contempt or breach’ of privileges is of very wide meaning and includes any act or omission which obstruct or interferes with any member or officer of the house in the discharge of his duties the house can issue a general or unspeaking warrant to arrest a person held guilty of committing contempt of the house and no court can go into its validity. However, if the reasons are mentioned in the committal warrant and are proved unlawful., the court can give redress to the person concerned.


It may be noted that the provisions of Art. 105 and 194 shall apply in relation to persons who by virtue of this constitution have the right to speak in, and, otherwise to take part in the proceedings of a House of Parliament or any committee thereof as they apply in relation to members of parliament.


Art. 122 envisages that the validity of the proceedings in parliament cannot be called in question in a court of law. However, the protection is not available against the irregularity of procedure.


Office of profit -

In Jaya Bachchan v UOI (AIR 2006 SC 2119),

The apex court interpreted the expression ‘office of profit’ in the context of disqualification ation for the membership of parliament. Under Art. 102 (1)(a), a person is disqualified for being chosen and for continuing as a member of parliament if he holds any office of profit under central or state govt. other than an office declared by parliament by law not to disqualify its holder. The object of this provision is to secure the independence of the members of parliament from the benefits of the executive which may be under influence and there may be conflicts between duty and self interest among the members of parliament.


Parliament may enact a la which may. Declare that a holder of and office of profit is not disqualified. Parliament has enacted the parliament (prevention of Disqualification) Act, 1959 which exempts certain offices as not to disqualify their holders for membership of parliament. In the instant case, the Rajya sabha M.P., Jaya Bachchan was disqualified from the membership of Rajya sabha on the ground that she was holding an office of profit in the capacity of the chairperson of the U.P. film Development council. The parliament (prevention of Disqualification ) Act did not exempt the said office of profit from the disqualification under art. 102(1)(a) of the constitution.


The court held : An ‘office of profit’ is an office which is capable of yielding a profit or Pecuniary gain. Nature of payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word ‘honorarium’ cannot take the payment out of the. Purview of profit, if there is Pecuniary giant for the recipient payment of honorarium. If the Pecuniary gain is ‘receivable’ in connection with the office then it becomes an office of profit irrespective of whether such pecuniary gain is actually received or not.


The office in issue carried with a monthly honorarium, entertainment expenditure, car with driver, telephone at office and residence, free accommodation and medical treatment facilities for self and family members, apart from other allowances, etc. the fact that the petitioner was affluent or was not interested in the benefits/facilities given by the state govt. or did not, in fact, receive such benefit till date, were not relevant to the issue. Disqualification was held to be proper.


ANTI-DEFECTION LAW —

‘Political defection’ is the political phenomenon in which a legislator elected as a member of a certain political party changes his party allegiance without resigning his seat. Some MLAs and MPs are ever ready to change party loyalty for personal consideration viz. lure of money. Further, unstable govt. coalition politics, dissidence, infighting, etc. are also responsible for it.

‘Defection’ includes situation like change of party or group, shifting of loyalty from one party to another or ‘’crossing of floor’’ inside the legislative chamber.


Tenth schedule and Anti-defection Law —


The constitution (52nd Amendant) Act, 1985 amended Arts. 101, 102, 190 and 191 of the constitution regarding vacation of seats and disqualification from the membership of parliament/state legislature and added a new schedule (tenth schedule) to the constitution setting out certain provisions as to disqualification on grounds of defection, viz.

1. If a member voluntarily gives up the membership of the political party on whose ticket he is elected to the house; or

2. If he vote or abstains from voting un the house against any direction of he political party, without the prior permission of such party, and unless it has been condoned by the party within 15 days from the date of voting or abstention; or

3. If any nominated member joints any political party after the expiry of 6 months from the date on which he takes his seat in the house.

Exception - the above disqualification will, however, not apply:

1. If a member of parliament / stat legislature goes out of his party as a result of a spilt in the original party provided such group consist of not less than 1/3 of total membership of that party in the house; or

2. If a membership goes out as a result of a merger of his original political party with another political party provided 2/3 of the member of the legislature party have agreed to such merger; or

3. If a member, after being elected as the presiding officer gives up the membership of the party to which he belonged, or does not rejoin that party or becomes a member of another party.

The constitution 91st amendments (2003) has omitted para 3 of the tenth schedule under which an exemption was given to the 1/3rd defectors from the political party that they shall not be disqualified under the defection law. The amendments has also added a new Art. 361-B which provides that a member, disqualified under the Anti-Defection law, shall not be appointed a minister nor hold any remunerative political post, for the duration from the date of his disqualification, till the date of expiry of the term of the house of which he was a member or till he is re-elected to a house, whichever is earlier.


If any question arises as to whether a member of a house has become subject to any of the disqualifications under under tenth schedule, the question shall be referred to the chairman or the speaker of the house, whose decision shall be final. Where the question is a to whether the speaker/ chairman has become subject to such disqualification, the question shall be referred for the decision of such member of the house as the house may elect in this behalf, and his decision shall be final.


The presiding officers of the house are required Tikona make rules for giving effect to the provisions of the schedule. These rules must be approved by the house. Wilful contravention of these rules may be treated as a breach of the privilege of the house and be punished accordingly.


In Kihoto Hollohan (AIR 1993 SC 412), the Supreme Court struck down para 7 of the tenth schedule which provided that the speaker’s decision regarding the disqualification shall be final and no court could examine its validity. The court held that the function of the speaker, while applying the anti-defection law is like that of a tribunal and therefore is open to judicial review. The process of determining the question of Disqualification could not be considered part of the proceedings of the house.


In jagit Singh v state of Haryana (AIR 2007 SC 590), it was held that the speaker’s order is open to judicial review only on limited grounds, but if his order is violated of the rules of natural justice it would be a nullify. Giving outside support and joining political party are two different things. The test in case of ‘independent’ members disqualification is whether he has given up his ‘’independent character’’. The Apex court held that when an application under tenth schedule i made to the speaker he should decide it according to the procedure laid down under the rule. If he himself decides the matter, this is a clear misuse of the power by him and the court has power to review speaker’s decision. The speaker, in the instant case, by misusing his power allowed an illegal govt. to continue in office for three years and thus damaged the edifice of the democratic constitution.




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