The history of relationship between Parliament and Courts at Westminster is also marked with conflict and controversy. Sir Erskine May rightly comments; “After some three and a half centuries, the boundary between the competence of the law courts and the jurisdiction of the either House in matters of privilege is still not entirely determined”.
According to the learned author, the earliest conflicts between Parliament and the Courts were about the relationship between the lex parliamenti and the common law of England. Both Houses argued that under the former, they alone were the judges of the extent and application of their own privileges, not examinable by any court or subject to any appeal. The courts, on the other hand, professed judicial ignorance of the lex parliamenti. After some time, however, they recognized it, but as a part of the Law of England and, therefore, wholly within the judicial notice.
In the middle of the nineteenth century, the conflict, to the large extent, had been resolved. Out of both the claims, (i) whether a privilege existed; and (ii) whether it had been breached, Parliament yielded the first to the courts. In turn, courts recognized right of the House to the second.
The question was also considered by Anson (‘The Law and Custom of the Constitution’, Fifth Edition; Vol. I; pp. 190-99). The learned author considered the causes of conflict between Houses and Courts. He noted that the House had asserted that ‘it is the sole judge of the extent of its privileges’ and the Court had no jurisdiction in the matter. Courts, on the other hand, took the stand that ‘when privilege conflicts with rights which they have it in charge of maintain, they will consider whether the alleged privilege is authentic, and whether it governs the case before them’.
Then referring to three leading cases, (i) Ashby v. White, (1704) 14 St Tr 695; (ii) Stockdale v. Hansard, (1839) 9 Ad & E 1 : 112 ER 1112; and (iii) Bradlaugh v. Gossett, (1884) 12 QBD 271 : 53 LJQB 200, the author concluded; On the whole, it seems now to be clearly settled that the Courts will not be deterred from upholding private rights by the fact that questions of parliamentary privilege are involved in their maintenance; and that, except as regards the internal regulation of its proceedings by the House, Courts of Law will not hesitate to inquire into alleged privilege, as they would into custom, and determine its extent and application.
In Halsbury’s Laws of England, (4th Edition, Reissue, Vol. 34; pp. 553-54; paras 1004-05), it has been stated;
1004. The position of the courts of law. Each House of Parliament has traditionally claimed to be the sole and exclusive judge of its own privilege and of the extent of that privilege. The courts of law accept the existence of privileges essential to the discharge of the functions of the two Houses. In 1939, all the privileges required for the energetic discharge of the Commons’ trust were conceded by the court without a murmur or doubt; and over 150 years later, the Privy Council confirmed that the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.
On the other hand, the courts take the view that it is for them to determine whether a parliamentary claim to privilege in a particular case falls within that area where what is claimed is necessary to the discharge of parliamentary functions or internal to one or other of the Houses, in which case parliamentary jurisdiction is exclusive, or whether it falls outside that area, especially if the rights of third parties are involved, where the courts would expect to form their own judgments.
1005. Limits of agreement regarding jurisdiction. In spite of the dualism of jurisdiction between the Houses of Parliament and the courts of law, the current measure of agreement on the respective spheres of the two Houses and the courts has, since the mid- nineteenth century, prevented the direct conflicts of earlier years. Although the Houses have never directly admitted the claim of the courts of law to adjudicate on matters of privilege, they appear to recognize that neither House is by itself entitled to claim the supremacy which was enjoyed by the undivided High Court of Parliament.
For their part the courts of law acknowledge that the control of each House over its own proceedings is absolute and not subject to judicial jurisdiction; and the courts will not interfere with the interpretation of a statute by either House so far as the proceedings of the House are concerned. Neither will the courts inquire into the reasons for which a person has been adjudged guilty of contempt and committed by either House, when the order or warrant upon which he has been arrested does not state the causes of his arrest; for in such cases, it is presumed that the order or warrant has been duly issued unless the contrary appears upon the face of it.
Holdsworth, in ‘A History of English Law’ (Vol. I; pp. 393-94) rightly observed;
There are two maxims or principles which govern this subject. The first tells us that “Privilege of Parliament is part of the law of the land;” the second that “Each House is the judge of its own privileges.” Now at first sight it may seem that these maxims are contradictory. If privilege of Parliament is part of the law of the land its meaning and extent must be interpreted by the courts, just like any other part of the law; and therefore, neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution.
On the other hand, if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by its own resolution. This apparent contradiction is solved if the proper application of these two maxims is attended to.
The first maxim applies to cases like Ashby v. White; (1704) 14 St Tr 695 and Stockdale v. Hansard; (1839) 9 Ad & E 1: 112 ER 1112 in which the question at issue was the existence of a privilege claimed by the House. This is a matter of law which the courts must decide, without paying any attention to a resolution of the House on the subject.
The second maxim applies to cases like that of the Sheriff of Middlesex; (1840) 11 Ad & E 273: 113 ER 419 and Bradlaugh v. Gosset; (1884) 12 QBD 271: 53 LJQB 200, in which an attempt was made to question, not the existence, but the mode of user of an undoubted privilege. On this matter the courts will not interfere because each House is the sole judge of the question whether, when, or how it will use one of its undoubted privileges.
In the case of Raja Ram Pal v. Speaker Loksabha (2007), the Supreme court said;
We have a written Constitution which confers power of judicial review on Supreme Court and on all High Courts. In exercising power and discharging duty assigned by the Constitution, Supreme Court has to play the role of a ‘sentinel on the qui vive’ and it is the solemn duty of Supreme Court to protect the fundamental rights guaranteed by Part III of the Constitution zealously and vigilantly. It may be stated that initially it was contended by the respondents that Supreme Court has no power to consider a complaint against any action taken by Parliament and no such complaint can ever be entertained by the Court.
Mr. Gopal Subramaniam, appearing for the Attorney General, however, at a later stage conceded (and I may say, rightly) the jurisdiction of Supreme Court to consider such complaint, but submitted that the Court must always keep in mind the fact that the power has been exercised by a co-ordinate organ of the State which has the jurisdiction to regulate its own proceedings within the four walls of the House. Unless, therefore, Supreme Court is convinced that the action of the House is unconstitutional or wholly unlawful, it may not exercise its extraordinary jurisdiction by re-appreciating the evidence and material before Parliament and substitute its own conclusions for the conclusions arrived at by the House.
In my opinion, the submission is well-founded. Supreme Court cannot be oblivious or unmindful of the fact that the Legislature is one of three organs of the State and is exercising powers under the same Constitution under which Supreme Court is exercising the power of judicial review. It is, therefore, the duty of Supreme Court to ensure that there is no abuse or misuse of power by the Legislature without overlooking another equally important consideration that the Court is not a superior organ or an appellate forum over the other constitutional functionary. Supreme Court, therefore, should exercise its power of judicial review with utmost care, caution and circumspection.”