In holding that Parliament is not the sole judge of the privileges it enjoys, a seven-judge Constitution bench of the Supreme Court has extended the scope for judicial review of the House and the actions of its members. “In a consistent line of precedent this Court has held that – firstly, Parliament or the state legislature is not the sole judge of what privileges it enjoys and secondly, Parliament or legislature may only claim privileges which are essential and necessary for the functioning of the House,” the ruling stated. The ruling focuses only on the scope of immunity from prosecution when an MP is charged with bribery since Article 105(2) of the Constitution guarantees that “no member of Parliament shall be liable to any proceedings in any courtroom in respect of anything said or any vote given by him in Parliament or any committee thereof…” Analogous to keeping parliamentary privilege out of the purview of the Courts, Article 121 of the Constitution places restrictions on the Parliament from discussing the conduct of judges of the Supreme Court or High Courts. These two provisions are part of the separation of powers between the state and the judiciary. The judiciary has always made a strong case for this line of separation for its own functioning — holding that the independence of the judiciary is part of the basic structure of the Constitution. The seven-judge bench ruling that lawmakers can be booked for graft even when it involves their actions within the House, relies on a reading of the Constitution that it “envisions probity in public life.” While this interpretation is not based on reading any one provision of the Constitution, the ruling states that corruption of lawmakers “is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive and representative democracy.” While a 3-2 majority ruling in 1998 had allowed virtually blanket immunity from graft charges, the SC has in the years since chipped at this privilege. In 2021, State of Kerala v Ajith, a bench headed by DY Chandrachud had dismissed pleas challenging the filing of a criminal FIR against six LDF members in the Kerala assembly ruckus case of 2015. The SC held that while MLAs are protected for their speech and even protest on the floor of the Assembly, criminal acts committed like damaging microphones or furniture cannot be covered under parliamentary immunity. Also pending before the SC are pleas seeking its intervention on defining the contours of the Governor’s powers in the lawmaking process. About this case, the SC ruling said that “the interplay between fundamental rights of citizens and the privileges of the Houses of Parliament or Legislature is pending before a Constitution bench of this Court.” The SC also said that Parliament or legislature may only claim privileges which are essential and necessary for the functioning of the House. The Court reasoned that since parliamentary privileges are a “collective right” of the House, the privilege exercised by members individually is in turn qualified by its “necessity,” which would be restricted only to privileges “without which they could not discharge their functions.”
