Parliamentary Privileges in India have been adopted from UK. The law on parliamentary privileges in UK was developed after a struggle by the House of Commons with the Tudor and Stuart Kings.
In The King v. Sir John Elliot,[1] at the peak of the confrontation between the Commons and the King in 1629, the King’s Bench prosecuted three members of the House of Commons, Sir John Elliot, Denzel Hollis and Benjamin Valentine, for making seditious speech, disturbing public tranquillity, and violently holding the Speaker in his position to stop the House from being adjourned.
The members of Parliament were found guilty, fined and imprisoned. Sir John Elliot was sent to be imprisoned in a tower where his health declined and he ultimately passed away. The report of the trial came to be published in 1667 and was noticed by the House of Commons. The House resolved that the judgment was illegal and against the privileges of Parliament. On a writ of error presented by Denzel Hollis, the House of Lords reversed the judgment of the King’s Bench.
With the glorious revolution of 1688, the last of the Stuart Kings, James, was expelled and a new dynasty was instated. The bitter struggle led to a firmly established constitutional monarchy with the House of Commons ultimately claiming both sovereignty and certain privileges which became ancient and undoubted as a result of the persistence of the House and its gradual recognition. Erskine May notes that:
“at the commencement of every Parliament it has been the custom for the Speaker, in the name, and on behalf of, the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings.”[2]
The clause stipulating freedom of speech in Parliament and immunity from prosecution flows from the Bill of Rights 1689. The Act was a crucial constitutional initiative by Parliament in England to lay claim to its status by grounding it in statute. The statute was to secure Parliament from royal interference in or through the courts. Article IX of the Bill of Rights stipulates:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
The clause guarantees freedom of speech in Parliament and protects it from being “impeached or questioned” in any court or place out of Parliament.
Two aspects of Article IX of the Bill of Rights may be outlined at the outset.
First, the privilege under Article IX in UK is not attached to individual members only. It immunizes the freedom of speech and debates or proceedings in Parliament and stipulates that it shall not be ‘impeached or questioned.’
Secondly, Article IX stipulates that the proceedings in Parliament may only be ‘impeached or questioned’ in Parliament.
This has led to debate as to whether any material from Parliamentary proceedings can be placed before the Courts and whether the jurisdiction of Parliament ousts the jurisdiction of the Courts.
The position as it stands allows for material from Parliamentary proceedings in the UK to be placed before the Court provided that it is not used to imply or argue mala fides behind the action. The courts in the UK have also interpreted a narrow scope for the nexus required for non-legislative activities to be immune. This has led to the holding that the jurisdiction of Parliament to discipline a member for taking bribe would not automatically oust the jurisdiction of the courts.
The parliamentary immunity attracted to speech made in Parliament came to be applied in the case of Ex Parte Wason,[3] where a Member of Parliament was accused of conspiring to make a statement which they knew to be false. A person had furnished a petition to Earl Russel to present before the House of Lords which charged the Lord Chief Baron of deliberately telling a falsehood before a Parliamentary committee.
This would have led to the removal of the Lord Chief Baron upon an address by both Houses of Parliament for such a removal. Earl Russel, Lord Chelmsford, and Lord Chief Baron conspired to make speeches in the House of Lords to the effect that the allegations of falsehood were unfounded despite knowing that the allegations were true. The magistrate refused to take the applicant’s recognizance on the grounds that a speech made in Parliament could not disclose any indictable offence. The Queen’s Bench affirmed the order.
Cockburn, CJ opined that speeches made in either House could not give rise to civil or criminal proceedings regardless of the injury caused to the interests of a third person. Concurring with the opinion Lush, J held that:
“[…] I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.”
The Queen’s Bench therefore held that a speech made inside the House cannot be questioned in any proceeding before a court in a civil or criminal action and neither can the motives behind the performance of such acts be questioned.
The issue of bribery was only governed by common law till 1889. Different common law offences were attracted based on corruption by different offices and their functions. The Public Bodies Corrupt Practices Act 1889, which applied only to local government bodies, created the first statutory offence of corruption. Subsequently, the Prevention of Corruption Act 1906 extended the offence of corruption to the private sector. Neither of these statutes covered the acceptance of bribe by a member of Parliament. In the absence of a statute, the question of taking bribe by a member of Parliament had remained a question of breach of privilege and only the House was empowered to take action against such corruption.
The Royal Commission on Standards of Conduct in Public Life, chaired by Lord Salmon, submitted its report in 1976 which inter alia recommended bringing “corruption, bribery and attempted bribery of a Member of Parliament acting in his Parliamentary capacity within the ambit of the criminal law.”
While presenting his report to the House of Lords, Lord Salmon said:
“To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake. The passage in the Bill of Rights is:
“That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.” Now this is a charter for freedom of speech in the House. It is not a charter for corruption.
To my mind, the Bill of Rights, for which no one has more respect than I have, has no more to do with the topic which we are discussing than the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited and taken. We have recommended that the Statutes relating to corruption should all be replaced by one comprehensive.
Statute which will sweep away the present anomalies. If you are not an agent—and Members of Parliament neither of this House nor of the other place are agents—if you are not the member of a public body (and we are not members of public bodies) the Statutes do not touch you. At Common Law you cannot be convicted of bribery and corruption unless you are the holder of an office, and most of us are not the holders of an office.”
Another commission was constituted after allegations of sleaze by many members of Parliament. The Standing Committee on Standards in Public Life under the Chairmanship of Lord Nolan submitted its report in 1994. The report expressed doubt as to who would have jurisdiction over a bribe taking member of Parliament. To resolve the jurisdictional question between the House and the court the report recommended for clarity from Parliament in the form of a statute. The report recommended that:
“The Salmon Commission in 1976 recommended that such doubt should be resolved by legislation, but this has not been acted upon. We believe that it would be unsatisfactory to leave this issue outstanding when other aspects of the law of Parliament relating to conduct are being clarified.
We recommend that the Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament. This could usefully be combined with the consolidation of the statute law on bribery which Salmon also recommended, which the government accepted, but which has not been done. This might be a task which the Law Commission could take forward.”
This recommendation was referred by the government to the Law Commission. The Law Commission submitted its report in 1998 recommending a new law which makes the offence of corruption applicable to all. This led to a sequence of events which ultimately culminated in the enactment of the Bribery Act 2010. The Act covers instances where members of Parliament engage in corruption.
While efforts were being made by lawmakers, the courts in UK continued answering questions on the scope of Article IX of the Bill of Rights on members of Parliament who engage in bribery. The allegations which had led to the constitution of the Nolan committee came before the courts in R v. Parliamentary Commissioner for Standards Ex Parte Fayed, and in Hamilton v. Al Fayed.
In the first case, a person had accused a member of Parliament of taking corruption money from him while the member was serving as a minister in the government. The Parliamentary Commissioner of Standards had cleared a member of Parliament of charges pertaining to taking of bribes.
The complainant filed for leave to apply for judicial review. The Court of Appeal allowed the application and held that:
“It is important on this application to identify the specific function of the Parliamentary Commissioner for Standards which is the subject of complaint on this application. It is that a Member of Parliament received a corrupt payment.
Mr. Pannick rightly says that parliamentary privilege would not prevent the courts investigating issues such as whether or not a Member of Parliament has committed a criminal offence, or whether a Member of Parliament has made a statement outside the House of Parliament which it is alleged is defamatory.
He submits that, consistent with this, the sort of complaint which the applicant makes in this case is not in relation to an activity in respect of which the Member of Parliament would necessarily have any form of parliamentary immunity.”
In Hamilton v. Al Fayed[4], another case emanating from the same facts against another member of Parliament, a question arose as to whether parliamentary privileges may be waived. The Court while returning specific findings on facts, also held that
“courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament.”
In arriving at such a conclusion the court relied on the judgment in Prebble v. Television New Zealand.[5]
In the above case, the respondent had transmitted a programme making allegations against the government that a minister had conspired with a businessman and public officials to promote and implement state asset sales with the object of allowing the businessman to obtain assets at unduly favourable terms.
The minister sued the channel for defamation. The channel sought to make a defence of truth and place reliance on things said and acts done in Parliament. It argued that the protection under Article IX of the Bill of Rights would only protect a member from being held liable for his speech in either House.
However, they could be placed on record as a defence if it is not being used to inflict liability upon a speech made in either House. The Privy Council held that parties to a litigation cannot bring into question anything said or done in the House or impute any motive to those actions. The Court allowed reliance on the official publication of the House proceedings to the extent that they are not used to suggest that the words were improperly spoken, or any statute was passed for improper use.
[1] (1629) 3 St. Tr. 294
[2] Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th ed.
(2019) 242.
[3] (1969) 4 QB 573.
[4] 2001] 1 A.C. 395.
[5] (1994) 3 ALL ER 407