A study on the Doctrine on the Doctrine Privilage under Indian Law & other privilages enjoyed enjoyed by the State in India
Doctrine of Privilege under Indian Law & Other Privileges Enjoyed by the State
1. Doctrine of Privilege: Detailed Explanation
What is the Doctrine of Privilege?
The Doctrine of Privilege refers to the special rights, immunities, and exemptions enjoyed by certain branches or organs of the State, particularly Parliament and Legislative Bodies, which allow them to perform their functions effectively without external interference. This doctrine is rooted in the principle of separation of powers and the sovereignty of legislative bodies.
Basis and Nature in India
The doctrine is based on the idea that legislative bodies must be free to conduct their proceedings and functions without hindrance or fear of external influence.
This includes freedom of speech within the house, freedom from arrest in certain cases, and protection from being sued for anything said or done in the legislature.
These privileges are necessary for the functioning of democracy and are seen as an extension of the sovereignty of Parliament.
Article 105 of the Indian Constitution grants these privileges to Parliament and its members, while Article 194 provides similar privileges to State Legislatures.
2. Scope of Privileges under Indian Law
Privileges can broadly be categorized into:
a) Individual Privileges:
Protection of individual members of Parliament or State Legislature.
Freedom from arrest in civil cases during the session and 40 days before and after.
Freedom of speech in the house (absolute privilege).
b) Collective Privileges:
Power to punish for contempt of the house.
Power to regulate internal affairs.
Control over admission and conduct of outsiders.
Right to publish proceedings.
3. Types of Privileges and Immunities Enjoyed by the State in India
Besides parliamentary privileges, the State enjoys other types of privileges, such as:
a) Sovereign Immunity
The State cannot be sued without its consent.
This principle is derived from the old English doctrine “The King can do no wrong,” meaning the State has immunity from lawsuits unless it waives this immunity.
b) Executive Privilege
The right of the Executive (Central or State government) to withhold information from the courts or legislature for reasons of public interest, national security, or confidentiality.
This privilege is not absolute and is subject to judicial review.
c) Judicial Immunity
Judges enjoy immunity from suits for acts done in their judicial capacity.
d) Diplomatic Privileges
Certain immunities for diplomats and foreign envoys operating in India.
4. Landmark Case Laws on Doctrine of Privilege and State Privileges in India
Case 1: Keshav Singh v Speaker, Legislative Assembly UP (1965) 1 SCR 722
Facts: Keshav Singh was detained by the State government, and the Legislative Assembly claimed it had the privilege to punish for breach of privilege.
Held: The Supreme Court held that the privilege of the legislature cannot violate fundamental rights guaranteed by the Constitution.
Significance: The doctrine of privilege is subject to the Constitution and cannot override fundamental rights like personal liberty under Article 21.
Case 2: Raja Ram Pal v The Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184
Facts: The case involved the expulsion of MPs for misconduct, raising questions about parliamentary privileges and judicial review.
Held: The Supreme Court held that the power of the legislature to expel members is subject to judicial review, especially if it violates constitutional rights.
Significance: Parliamentary privileges are not absolute and are subject to fundamental rights and constitutional limitations.
Case 3: Brij Bhushan v The State of Delhi AIR 1950 SC 129
Facts: A member of Parliament was sued for alleged defamatory remarks made in the house.
Held: The Supreme Court ruled that freedom of speech in the legislature is absolute and such speech cannot be questioned in courts.
Significance: Reinforces absolute privilege for speech made in Parliament or legislature to ensure free discussion.
Case 4: Union of India v K.S. Jagannathan AIR 1967 SC 1229
Facts: The case dealt with executive privilege regarding disclosure of information.
Held: The Supreme Court recognized the executive privilege to withhold information in matters of public interest but also held that the privilege is not absolute.
Significance: This case lays down the foundation for the balancing act between transparency and confidentiality under executive privilege.
Case 5: State of Bombay v R.M.D. Chamarbaugwala AIR 1957 SC 699
Facts: The issue was about the scope of sovereign immunity in India.
Held: The Supreme Court observed that the doctrine of sovereign immunity survives in India but is subject to the Constitution and statutory provisions.
Significance: Established that sovereign immunity is qualified and not absolute in Indian law.
5. Summary Table of Privileges
| Privilege | Description | Constitutional Provisions | Case Reference |
|---|---|---|---|
| Parliamentary Privilege | Freedom of speech, freedom from arrest, contempt powers | Articles 105 & 194 | Raja Ram Pal v Speaker |
| Sovereign Immunity | State cannot be sued without consent | Derived from common law | State of Bombay v Chamarbaugwala |
| Executive Privilege | Right to withhold sensitive info | No explicit article; judicially recognized | Union of India v Jagannathan |
| Judicial Immunity | Judges protected from suits for judicial acts | Common law principle | Various judgments |
| Diplomatic Privileges | Immunity for diplomats | Vienna Convention, customary law | International norms |
6. Important Observations
The Doctrine of Privilege is not above the Constitution.
Fundamental Rights, particularly the right to life and liberty (Article 21) and freedom of speech (Article 19), impose limitations on privileges.
Privileges must be exercised with responsibility, and the judiciary acts as a check on abuse of privilege.
The State enjoys certain immunities for smooth functioning, but these immunities are not absolute.
Conclusion
The Doctrine of Privilege under Indian law safeguards legislative independence but operates within the framework of the Constitution. Parliamentary privileges are necessary to uphold democracy but cannot violate constitutional rights. The State enjoys several privileges and immunities such as sovereign immunity and executive privilege, each subject to judicial scrutiny to prevent misuse.
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