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Parliamentary self-review the new Judicial Review?

Lex et consuetudoParliamenti  ab omnibus quaerenda, a multisignorata, a pauciscognita”

The law and custom of parliament was meant to be sought by all, unknown to many and known by few. This maxim paves path for the Parliamentary Privileges enjoyed by few and contested by many.

As the term suggests, Parliamentary Privileges refer to certain open ended powers and immunities vested with members of the Legislative Assemblies- both at the union[1] and state[2] level as elucidated in our constitution. These privileges emphasise on Parliamentary democracy by enabling the members of the assembly to conduct unhampered sessions without the constant worry of being reprimanded for their actions by any outsider. A borrowed rule, “It is an importation from England, a plant of an alien stock from which it continues to receive its very life and substance.”[3]

A scrutinized privilege, it promotes the independence of the legislative by delegating the “Power to punish for breach of privilege or contempt”, “right to regulate its own composition”, “right to prohibit the publication of its proceedings”, “freedom of speech and debate in the House” and “freedom from arrest in civil cases for up to 40 days ”etc to itself. Thus, in this manner, the Legislative delegates the power to regulate its actions to itself.Instances of the Legislation mitigating their actions via these privileges may be observed in P.V. Narsimha Rao v. State (CBI/SPE)[4]where the Supreme court justified the dismissal of charge of bribery in the instance that the act was motive behind the vote cast by him during the course of Parliamentary session.

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It is essential to note that the Union and state legislations are at liberty to decide on their “other privileges”[5]as sanctioned in the Constitution. The same was addressed by the Constitutional Review Commission in their report published in 2002. The committee, headed by Justice M.N. Venkatachaliah, stated that the “privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and State Legislatures”[6]in an effort to limit the misinterpretation of the powers.

As a country that believes in Constitutional supremacy, the concept of a self-governing Parliament may lead to corruption. Further, this invalidates the Doctrine of checks and balances that was introduced to curtail and maintain the organs of the Constitution in exercising their powers. As a means to tackle this we may employ Judicial review, a supervisory tool invoked in the Constitution to intervene when there is an abuse of power. Judicial review is an integral element of the Basic structure doctrine as introduced by the Supreme court in the Minerva Mills[7] case and reiterated in the case of SR Bommai[8]. It refers to the sanctioned power of the Judiciary to revisit, review and revise actions of  Executive and Legislation that are in contravention with the Basic structure of the Constitution.

Parliamentary privileges, although a branch of the Legislative, do not fall under the purview of Judicial review. This means that the actions of Parliament members cannot be questioned or contested by the Judiciary, taking an extremist stand on the Doctrine of Separation of Powers.  Although initially kept separate to uphold the independence and liberty of the legislators to ensure effective and fearless debates and decisions, this has led to an infringement of the Freedom of Publication of the press, overstepped into the Public’s right to information leading to a risky interpretation of law and ultimately endangering public policy.

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As guardian of the Constitution, the Judiciary must be allowed to comment on the Parliamentary Privileges. Not only would this strengthen the hierarchy of law but would also regulate the misuse of Parliamentary powers by the members in performing their duties during sessions. Since Judicial Review is not the norm but the exception, it would only be employed if there is a dire need for the same. Thus, the independence of the Legislation is also guaranteed.  

In a recent judgement pronounced by the Supreme court[9], it was held that the principle of natural justice supersedes Parliamentary privileges.The principle of Natural justice advocates bias-free functioning as a basic requirement. Further, the verdict of the Supreme Court on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution is a glaring example when any parliamentary act is overturned as unconstitutional on the principle of judicial review. These instances shed light on why all aspects of an institution must be subject to overview in order to avoid a predisposed decision making process.

Power corrupts and absolute power corrupts absolutely. The Indian Parliament, functioning within a democracy, has been vested with privileges that enhance its independence but the misuse of which may lead to a gross violation of Constitutional values. Thus, it is pertinent to allow the Doctrine of Judicial Review to oversee the usage of Parliamentary Privileges in order to avoid the exploitation of the same.

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[1] INDIA CONST. art. 105

[2] INDIA CONST. art. 194

[3] Prititosh Roy, PARLIAMENTARY PRIVILEGE IN INDIA 1 (Oxford University Press 1991).

[4] P.V. Narsimha Rao v. State (CBI/SPE), A.I.R. 1998 S.C. 2120(India).

[5] Id.

[6] Summary of Recommendations, Government of India, http://legalaffairs.gov.in/sites/default/files/chapter%2011.pdf.

[7] Minerva Mills v. Union of India, A.I.R. 1980 S.C 1789(India)

[8] S.R. Bommai v. Union of India  A.I.R  1994 SCC 3(India)

[9] Algaapural R. Mohanraj v. Tamil Nadu Legislative Assembly, W.P. (CIVIL) NO. 455 OF 2015 (India).


Cite this article (The Bluebook 20th ed.)-

Aparna P. V., Parliamentary self-review the new Judicial Review?, Ex Gratia Law Journal, (August 21, 2020), https://exgratialawjournal.in/blawg/constitutional-law/parliamentary-self-review-the-new-judicial-review/.

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Author

Aparna P. V.
Student - SASTRA Deemed to be University