Can the Privileges of the Parliament override the fundamental rights?

Question: Can the privileges of the Parliament override the fundamental rights? [RJS 1988]

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Answer

Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in their individual capacity, without which they cannot discharge their functions as entrusted upon them by the Constitution. According to the Constitution, the powers, privileges, and immunities of Parliament and MP’s are to be defined by Parliament under Article 105. Therefore, the power and privileges given to parliamentary members are not absolute and are subject to fundamental rights under Part III of the Constitution.

Under Article 105(3), Parliament may pass a law to define its privileges while any law in contravention with any of the fundamental rights will be invalid. If the legislature of a state under the first part of clause (3) makes a law that prescribes its powers, privileges, and immunities, such law must be subject to Article 13 and it would be void if it contravenes or abridges the Fundamental Rights.

The landmark case on this subject is of MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395. The facts of the case suggest that the petitioner, editor of the English Daily newspaper of Patna published a report on the proceedings of the Bihar Legislative Assembly and the reports were said to be removed by the speaker.

The editor was presented before the Legislative Assembly to give reasons for the breach of privilege committed by him and was held guilty. The editor went on appeal under Article 19 (1) (a) argued that he has a right to freedom of speech. But the Court denied all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a special provision. Since the general provision cannot overrule the effect of the special provision, if at any time both of these articles come under any conflict the latter will prevail over the former.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of Harmonious Construction (every statute should be read as a whole and interpretations consistent with all the provisions of the statute should be adopted when in conflict of any statute or any part of the statute) should be applied.

Further, in another landmark case of Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952, the U.P. Legislative Assembly issued a warrant against the Home Minister who was arrested from his residence in Bombay on the ground of contempt of the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article 22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article 22(2). Since, he was not presented before the magistrate within 24hrs of his arrest or detention, not presenting him before the magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot supersede the fundamental rights.

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