penal power of house

Raj_IPS

can a person found guilty of breach of privilege or contempt of the house,be imprisoned just on the declaration of the house?or does judiciary has any role in this?

spirate

Short answer: Yes, our Parliaments and Legislative Assemblies have the constitutional mandate to define their own privileges and powers. They can determine guilt of breach of privilege/contempt by whatever manner they see fit, and order whatever punishment they see fit. The judiciary cannot interfere with any legislative order that seeks to enforce its privilege.

Long answer:
Articles 105 (3) and 194 (3) grant our Parliament and Legislative Assemblies absolute power in defining their powers, privileges and immunities [modeled after UK's House of Commons]. This is actually a bit of an anomaly, because a written Constitution usually spells out the powers and privileges of the Parliament, and allows the judiciary to check the Legislature from abusing its power.

But for the sake of interim convenience our Constitution had provided that our Parliament can enjoy all the privileges of the House of Commons until a law is made spelling out the exact privileges. No law on this matter has been made yet, so our Parliament technically continues to enjoy all the powers that the House of Commons enjoys. The logic behind granting privileges to the Legislature and the Judiciary is that these organs should be able to enjoy every right/privilege, which are required for due execution of their functions. When these rights/privileges are disregarded or violated, the breach of privilege can be punished. Some of the rights claimed by the Parliament/Legislative Assemblies include compelling attendance of witnesses before Committees, demanding any papers/records, prohibiting the publication of its proceedings, excluding strangers from the House etc.

Obviously, when the House employs its privilege to gag/reprimand/arrest someone, individual rights (including fundamental ones) are made subordinate to Parliamentary privilege. On this issue, the Courts have seen lot of cases, particularly the Searchlight case (1959) and Keshav Singh's case (1964). Keshav Singh is an interesting case-- this guy Keshav Singh distributed some pamphlets outside the UP Assembly which was brought to the attention of the Speaker. The Speaker deemed the content of the pamphlet to be derogatory of the house, and got this chap arrested. Singh moved the Allahabad HC, which granted him a bail. The Speaker then issued contempt orders to the judges also, asking them to appear before the Assembly. The Allahabad HC decided to checkmate the Speaker by ordering his arrest! This sparked off a lot of litigation, and ultimately led to a Presidential Reference to the Supreme Court (in 1964). The President sought to clarify whether Parliamentary Privileges are subject to Fundamental Rights, and if the courts had any jurisdiction on orders of the Legislatures.

For full details on what the Allahabad High Court said in Keshav Singh, you can read http://www.allahabadhighcourt.in/event/CaseConstitutionalConflictMHBeg.pdf. And for full details on the Supreme Court's response to the Presidential reference, read http://indiankanoon.org/doc/907052/.

Here's a brief summary of the SC's stand:
1. Our Parliament is not sovereign as the House of Commons. There is, rather, a balance of constitutional supremacy and parliamentary sovereignty. Likewise, there must be a balance between individual rights and parliamentary privileges.
2. It is acceptable for someone to move the HC/SC when his/her rights are violated by an order of the Parliament. The court can apply the principle of harmonious construction to determine whether a particular Fundamental Right can be subordinated by the order.
3. Both judiciary and executive derive their status form the Constitution, and should work in harmony rather than antimony. It is unconstitutional to hold a judge in contempt of the Parliament.
4. The power to punish for contempt must always be exercised cautiously, wisely and with circumspection.

Neyawn

=D> Awesome @spirate

@Raj_IPS would be awesome too if he left a thank you note :-)

Partho

@spirate can you tell us the source? Because i remember reading this before, unable to recollect where!!
Btw awesome effort mate!

Raj_IPS

thank you..

Raj_IPS

Short answer: Yes, our Parliaments and Legislative Assemblies have the constitutional mandate to define their own privileges and powers. They can determine guilt of breach of privilege/contempt by whatever manner they see fit, and order whatever punishment they see fit. The judiciary cannot interfere with any legislative order that seeks to enforce its privilege.

Long answer:
Articles 105 (3) and 194 (3) grant our Parliament and Legislative Assemblies absolute power in defining their powers, privileges and immunities [modeled after UK's House of Commons]. This is actually a bit of an anomaly, because a written Constitution usually spells out the powers and privileges of the Parliament, and allows the judiciary to check the Legislature from abusing its power.

But for the sake of interim convenience our Constitution had provided that our Parliament can enjoy all the privileges of the House of Commons until a law is made spelling out the exact privileges. No law on this matter has been made yet, so our Parliament technically continues to enjoy all the powers that the House of Commons enjoys. The logic behind granting privileges to the Legislature and the Judiciary is that these organs should be able to enjoy every right/privilege, which are required for due execution of their functions. When these rights/privileges are disregarded or violated, the breach of privilege can be punished. Some of the rights claimed by the Parliament/Legislative Assemblies include compelling attendance of witnesses before Committees, demanding any papers/records, prohibiting the publication of its proceedings, excluding strangers from the House etc.

Obviously, when the House employs its privilege to gag/reprimand/arrest someone, individual rights (including fundamental ones) are made subordinate to Parliamentary privilege. On this issue, the Courts have seen lot of cases, particularly the Searchlight case (1959) and Keshav Singh's case (1964). Keshav Singh is an interesting case-- this guy Keshav Singh distributed some pamphlets outside the UP Assembly which was brought to the attention of the Speaker. The Speaker deemed the content of the pamphlet to be derogatory of the house, and got this chap arrested. Singh moved the Allahabad HC, which granted him a bail. The Speaker then issued contempt orders to the judges also, asking them to appear before the Assembly. The Allahabad HC decided to checkmate the Speaker by ordering his arrest! This sparked off a lot of litigation, and ultimately led to a Presidential Reference to the Supreme Court (in 1964). The President sought to clarify whether Parliamentary Privileges are subject to Fundamental Rights, and if the courts had any jurisdiction on orders of the Legislatures.

For full details on what the Allahabad High Court said in Keshav Singh, you can read http://www.allahabadhighcourt.in/event/CaseConstitutionalConflictMHBeg.pdf. And for full details on the Supreme Court's response to the Presidential reference, read http://indiankanoon.org/doc/907052/.

Here's a brief summary of the SC's stand:
1. Our Parliament is not sovereign as the House of Commons. There is, rather, a balance of constitutional supremacy and parliamentary sovereignty. Likewise, there must be a balance between individual rights and parliamentary privileges.
2. It is acceptable for someone to move the HC/SC when his/her rights are violated by an order of the Parliament. The court can apply the principle of harmonious construction to determine whether a particular Fundamental Right can be subordinated by the order.
3. Both judiciary and executive derive their status form the Constitution, and should work in harmony rather than antimony. It is unconstitutional to hold a judge in contempt of the Parliament.
4. The power to punish for contempt must always be exercised cautiously, wisely and with circumspection.

Now that's what UPSC requires:)awesom

spirate

@spirate can you tell us the source? Because i remember reading this before, unable to recollect where!!
Btw awesome effort mate!

Thanks. I referred to the two judgements that I cited in the answer.