Constitutional Law Project

JAMIA MILLIA ISLAMIA
PROJECT WORK ON CONSTITUTIONAL LAW
PRIVILEGES AND FUNDAMENTAL RIGHTS
SUBMITTED TO:- SUBMITTED BY:-
DR. ASAD MALIK HUZAIFA SALIM
ASSOCIATE PROFESSOR ROLL NO - 29
B.A.LL.B(HONS)
2ND YEAR (REGULAR)

PRIVIGES ANDFUNDAMENTAL RIGHTS
ACKNOWLEDGEMENT
First of all I want to thank GOD for enabling me to successfully complete this project.
Then I would like to give my sincere thanks to our respected Constitutional Law faculty,
DR.,ASAD MALIK, who has guided me all the way in completing this project.
Then I would like to give thanks to our librarians who have helped me all the way in searching
through the source materials which help me a lot in completing this project.
The list couldn’t be completed without thanking all my friends who have encouraged me in
successful accomplishment of this project.
HUZAIFA SALIM
ROLL NO- 29
B.A.LLB(HONS)(REGULAR)
3RD SEMESTER
CONSTITUTIONAL LAW Page 2

INDEX
 INTRODUCTION
 MEANING AND DEFINATION OF PARLIAMENTARY PRIVILEGE
 RELEVANT PROVISION CONCERNING PARLIAMENTRY PRIVILEGE IN
INDIA
 REGARDING SPEECH
 REGARDING PUBLICATION
 REGARDING VOTING
 REGARDING STATUTORY LAW
 REGARDING REGULATION INTERNAL PROCEEDING
 REGARDING RIGHT TO PUNISH FOR CONTEMPT OF HOUSE
 REGARDING PRIVILEGES AND FUNDAMENTAL RIGHT
 THE GK REDDY CASE
 THE MSM (SEARCH LIGHT CASE)
 THE 1964 PRESIDENTIAL REFRENCE CASE
 THE RAJA RAMPAL CASE
 CONCLUSION
 BIBLIOGRAPHY

INTRODUCTION
History of humanity records various instances of conflict between the governed and the
government. It also records that gradually the governed asserted itself against the government
and established its rights to freedom and liberty. A simple definition of privilege is that it is an
exceptional right or exemption. In its legal sense it means an exemption from some duty, burden,
attendance or liability to which others are subject. In Parliamentary language, however, the term
applies to certain rights and immunities enjoyed by each House of Parliament collectively, and
by members of each House individually without which they cannot discharge their functions.
The privileges are provided to both the houses of parliament to work effectively and efficiently
and to discharge its functions without any kind of obstruction or interference. The privileges are
provided to each house collectively and to its members independently. Since, India has these
privileges enshrined in its Constitution, it would be appropriate to approach the topic with
reference to the relevant constitutional provisions. The law on the subject in other countries is an
important aid for understanding the limits and extent of the law of privileges. Article 105 of the
Constitution relating to the "Powers, privileges and immunities of Parliament and its members"
and Article 194 relating to the State Legislatures and their members contain certain enumerated
privileges and powers while leaving room for a large number of uncodified and unenumerated
privileges to continue. Reference to certain other provisions like Articles 118, 121, 122, 208, 211
and 361-A, which also have a bearing on the subject, are made at the appropriate places.
The Fundamentals of the Indian Constitution are contained in its preamable which secures to its
citizens, justice, social, economic and political; liberty of thought, expression and belief, faith
and worship; equality of status and opportunity; and to promote among them all fraternity
assuring the ‘dignity of the individual and the unity of the nation. The theme of these objectives
permeates throughout the entire constitution. It was to give effect to these objectives that
fundamental rights were enacted in Part III. Even prior to the present constitution of India, the
idea of Fundamental Rights was present in a tenuous form in the Indian polity.
MEANING OF PARLIAMENTARY PRIVILEGE
As per Dicey , “It’s harder to define than the extent of the indefinite powers or rights possessed
by either House of Parliament under the head of privilege or law and custom of Parliament”. As

per the Oxford dictionary1 the term privilege refers to the “special right, advantage or immunity
to the particular person. It is a special benefit or honor”.
In the case of Raja Ram Pal v Hon’ble speaker Lok Sabha 2 defined the term privilege as “A
special right, advantage or benefit conferred on a particular person. It is a particular advantage or
favor granted to one person as against another to do certain acts”. Inherent in the term is the idea
of something, apart and distinct from a common right which is enjoyed by all persons and
connotes some sort of special grant by the sovereign.
Sir Thomas Erskine May, in his much celebrated treatise, has defined the phrase parliamentary
privilege as: “The sum of the peculiar rights enjoyed by each House collectively as a constituent
part of the High Court of Parliament, and by members of each House individually, without which
they could not discharge their functions, and which exceed those possessed by other bodies or
individuals”. 3
RELEVANT PROVISION CONCERNING PARLIAMENTRY PRIVILEGE IN INDIA
Article 105 and 194 of the constitution of India deals with the power privileges and immunities
of parliament and its members and of their state legislature and their members respectively. This
constitution of India does not exhaustively enumerate the privileges of Indian parliamentarian.
As Section 3 of both these articles refers directly to the privilege of the House of Commons at
the commencement of the constitution. Hence it basically deals with all those privileges that
exist in the House of Commons as on 26 January 1950.
Article 105: Powers, privileges, etc. of the Houses of Parliament and of the members and
committees thereof-4
(1) Subject to the provisions of this constitution and the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
1
Oxford dictionary, 10th Edition, p.1138.
2
2007 (2) SC 1.
3
Erskine May, T. (1989) Parliamentary Practice, 21st edn (London: Butterworth).
4
The Constitution of india, art.105.

(2) No Member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in Parliament or any committee thereof, and no person
shall be so liable in respect of the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and
of the members and the committees of each House, shall be such as may from time to time be
defined by Parliament by law, and, until so defined shall be those of that House and of its
members and committees immediately before the coming into force of Section 15 of the
Constitution (Forty-fourth Amendment) Act 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this constitution have the right to speak in, and otherwise to take part in the proceedings of, a
House of Parliament or any committee thereof as they apply in relation to members of
Parliament.
Article 194: Powers, privileges, etc., of the House of Legislatures and of the members and
committees thereof.-5
(1) Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature
of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof,
and no person shall be so liable in respect of the publication by or under the authority of a
House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a
State, and of the members and the committees of a House of such Legislature, shall be such as
may from time to time be defined by the Legislature by law, and, until so defined, shall be those
of that House and of its members and committees immediately before the coming into force of
Section 26 of the Constitution (forty-fourth Amendment) Act, 1978.
5
The Constitution of india, art.105.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue
of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a
House of the Legislature of a State or any committee thereof as they apply in relation to
members of that Legislature.
Hence from the above 2 different Article of the Indian Constitution, it can be inferred that the
position of the state legislature is the same as those of the house of parliament. Therefore Article
105 applies Mutatis Mutandis to the state legislature as well. Both articles expressly mentioned
two privileges namely- freedom of speech and freedom of publication of proceedings.
REGARDING SPEECH
Article 105(1) guarantees freedom of speech in Parliament subject of course to the rules and
Standing Orders regulating the procedure of Parliament. What makes Article 105(1) effective
and much more than the right of every citizen to free speech guaranteed by Article 19(1)(a), is
the immunity from the process of the courts in respect of anything said in the House. The
privilege is available not only to the Members of Parliament but also, under Article 105(4) of the
Constitution, to persons like the Attorney General of India or Ministers who are not members but
have a right to speak in the House. The stage has been set for fearless participation in the debates
in the House. In order to claim the immunity, what needs to be shown is only that Parliament was
sitting and that its business was being transacted.6 The limitation on the privilege regarding free
speech in Parliament are few. One limitation obviously is that the freedom is subject to the
constitutional provisions and the rules and procedures of Parliament. The rules are those framed
under Article 118 of the Constitution. Under Article 121, Parliament cannot discuss the conduct
of Judges of the Supreme Court and of the Judges of the High Court. Even if there is any
violation of these limits it would still be a matter exclusively for Parliament to deal with and the
courts would have no jurisdiction to look into the matter. In view of Article 122, the courts are
also explicitly barred from enquiry into the validity of any proceeding in Parliament. Another
exception is of course that Parliament must be sitting. The privilege cannot, arguably, be
stretched to cases of casual conversation in the House. A member cannot also claim immunity
for any speech that he may make outside the House even if it is a verbatim reproduction of what
6
TejKiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272.

he has said inside the House. In a case decided by the United States Supreme Court evidence had
been admitted on the authorship, content and motivation of a speech made by a member on the
floor of the House of Representatives in pursuance of a conspiracy designed to give assistance in
return for compensation. It was held7that the conspiracy conviction was based on an intensive
enquiry of the proceedings of the House and was, therefore, unsustainable. In England, under
Section 13 of the Defamation Act, a member may waive privilege and contest the
proceedings.8In the absence of a similar provision, it is doubtful if an Indian cour tcould, in the
light of the express bar under Article 105(2), entertain a litigation even in a case of waiver of
privilege. So, it is evident that subject to very minor limitations the privilege under Articles
105(1) and (2) with regard to speech in the House is complete, conclusive and outside the scope
of scrutiny or enquiry by other organs of the State.
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 which prescribes its powers, privileges and
immunities, such law would be subject to Article 13 and clause (2) of that Article would render
it void if it contravenes or abridges the Fundamental Rights guaranteed by Part III. Again the
Constitution guarantees the fundamental right to freedom of speech and expression. The right
includes the right to freedom of press. A question arises as to the extent of this right vis-a-vis the
privileges of the Legislature. Has an editor of a newspaper the right to publish the proceedings of
a state legislature if the speaker prohibits the publication ? And these are the points of clash. One
more thing Article 19(I)(a) guarantees freedom of speech and expression to every citizen of
India. But this right is subject to reasonable restrictions under clause (2) of Article 19. The
rightunder Article 105 is an independent right and is not subject to restrictions under clause (2)
of Article 19(1) Thus, it is clear that the freedom of speech under Article 105 is different from
the freedom of speech under Article 19, which is subject to restrictions.9
7
United States v. Thomas F. Johnson, 15 L Ed 2d 681 : 383 US 169 (1966).
8
Erskine May: Parliamentary Practice (23rd Edn.) p. 113.
9

REGARDING PUBLICATION
The freedom of publication is available to all persons who may publish reports, etc. of the House
or papers under the authority of the House. For the purposes of Articles 105(1) and 105(2), it is
quite immaterial if the publication was meant for circulation among the Members of Parliament
or for a larger audience. The development of the law in this regard owes much to the case of
Stockdale v. Hansard.10A book containing defamatory matter was published under the authority
of the House of Commons leading to a suit for damages. The suit was decreed holding that no
privilege is attached to the publication. This led to the framing of the Parliamentary Papers Act,
1840 granting complete privilege to the publications made under the authority of the House.
Articles 105(1) and (2) reflect the march of the English law on the subject.
A word must also be said about the rights of publication in respect of proceedings of the House,
but not under its authority. Such publications obviously do not have the protection of Articles
105(1) and (2). But, an attempt has been made to protect the freedom of the press and thereby
give the public access to the proceedings of the House. , The Constitution (44th Amendment) Act,
1978 has put the immunity for publication on a very sound footing. It has added Article 361-A to
the constitution incorporating the provisions of the above-said act.
Article 361-A is titled as “Protection of publication of proceedings of Parliament and State

11
Legislatures.” It provides in clause (1) “No person shall be liable to any proceedings, civil or
criminal, in any court in respect of the publication in a newspaper of a substantially true report
of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case
may be, either House of the Legislature, of a State, unless the publication is proved to have been
made with malice.”
However, it is provided that nothing in this clause shall apply to the publication of any report of
the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or,
as the case may be, either House of the Legislature, of a State.
The clause (2) states that “Clause (1) shall apply in relation to reports or matters broadcast, by
means of wireless telegraphy as part of any programme or service provided by means of a
10
(1839) LJ (NS) QB 294.
11
The Constitution of India, art.361-A.

broadcasting station as it applies in relation to reports or matters published in a newspaper.” It is

explained that in this article, “newspaper” includes a news agency report containing material for
publication in a newspaper. The immunity is lost only if it is proved that the publication was
made with malice or if it related to the proceedings of any secret meeting of the House. In some
ways the privilege is similar to the one conferred on persons reporting court proceedings by the
Fourth Exception to Section 499 of the Penal Code. The privilege could be successfully claimed
even in respect of a part of the debate which alone the reporter finds newsworthy provided that it
is afair report, untainted with malice.12
The limits of the privilege with regard to publication can be appreciated with reference to two
cases decided by the Supreme Court. InPandit M.S.M Sharma v. Shri Krishna Sinha13, popularly
known as Searchlight case proceedings for the breach of privilege had been started against an
editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar
legislative assembly which the speaker had ordered to be expunged from the proceedings of the
Assembly.
The editor in a writ petition under Article 32 contended that the House of Commons had no
privilege to prohibit either the publication of the publicly seen and heard proceedings that took
place in the House or of that part of the proceedings which had been directed to be expunged.
The Supreme Court by a majority of four to one rejected the contention of the petitioner.
Das C.J., who delivered the majority judgment, observed that the House of Commons had at the
commencement of our Constitution the power or privilege of prohibiting the publication of even
a true and faithful report of the debates or proceedings that took place within the House. A
fortiori the House had at the relevant time the power or privilege of prohibiting the publication of
an inaccurate version of such debates or proceedings. The Court said that the effect in law of the
order of the Speaker to expunge a portion of the speech of member might be as if that portion
had not been spoken.
12
Cook v. Alexander, (1973) 3 WLR 617.
13
AIR 1959 SC 395

In Jatish Chandra Ghosh (Dr.) v. Hari Sadhan Mukherjee14a member published questions that
were disallowed by the Speaker. In both cases, the publications were found not entitled to any
privilege.
REGARDING VOTING
The other privilege expressly conferred by Article 105(2) of the Constitution is the one relating
to the vote by a member in the House. In a much-publicized matter involving former Prime
Minister, several ministers, Members of Parliament and others a divided Court, in P.V. Narsimha
Rao v. State (JMM Bribery Case)15has held that the privilege of immunity from courts
proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the
purpose of voting in a particular manner in Parliament.
The majority (3 judges) of the Apex Court did not agree with the minority (2 judges) and
explained that expression “in respect of” in Article 105(2) must be given a wide meaning so as to
comprehend an act having a nexus or connection with the speech made or a vote given by a
member in parliament or any committee thereof. So interpreted, it would include within its
ambit, acceptance of a bribe by a member in order to make a speech or to cast his vote in
parliament or any committee thereof in a particular manner.
Therefore, the bribe taker MPs, who had voted in parliament against no-confidence motion were
held entitled to the protection of Article 105(2) and were not answerable in a court of law for
alleged conspiracy and agreement. The court further held that the bribe taker MP, who did not
vote on the no-confidence motion was not entitled to protection under Article 105(2). To the
bribe giver MPs it was held, the protection under Article 105(2) was not available. The court
further ruled that the Lok Sabha could take action for breach of privileges or contempt against
the alleged bribe givers and against the alleged bribe takers, whether or not they were members
of parliament.
"137. We are acutely conscious of the seriousness of the offence that the alleged bribe-takers are
said to have committed. If true, they bartered a most solemn trust committed to them by those
14
AIR 1961 SC 613
15
AIR 1998 SC 2120.

they represented. By reason of the lucre that they received, they enabled a Government to
survive. Even so, they are entitled to the protection that the Constitution plainly affords them.
Our sense of indignation should not leadus to construe the Constitution narrowly, impairing the
guarantee to effective parliamentary participation and debate." (SCC p. 730, para 137)
The court was however unanimous that the members of Parliament who gave bribes, or who took
bribes but did not participate in the voting could not claim immunity from court proceeding’s
under Article 105(2). The decision has invoked so much controversy and dissatisfaction that a
review petition is pending in the court.
Both, the minority and the majority judgments in the case indicate the march of the law in
various countries and the attempts to cut down on the immunity. In particular, reference is found
to the Report of the Royal Commission on Standardsin Public Life (chaired by Lord Salmon)
which has stated that"neither the statutory nor the common law applies to the bribery or
attempted bribery of a Member of Parliament in respect of his parliamentary activities" but
"corrupt transactions involving a Member of Parliament in respect of matters that has nothing to
do with the parliamentary activities would be caught by the ordinary criminal law". The report
also notes that investigation into such matters could be too complex, would require special
expertise and be beyond the investigative capacities of the House. A Parliamentary
Commissioner for Standards appointed by the Select Committee of Standards and Privileges can
and does go into the propriety of a member's conduct and deals with allegations of corrupt
payment to members. But, the courts in England still believe that the ordinary criminal courts are
best equipped to deal with bribery cases. Buckley, J. in R. v. Greenway16has stated as follows:
"That a Member of Parliament against whom there is a prima facie case of corruption should be
immune from prosecution in the courts of law is to my mind an unacceptable proposition at the
present time. I do not believe it to be the law. The Committee of Privileges is not well equipped
to conduct an enquiry into such a case, nor is it an appropriate or experienced body to pass
sentence. Unless it is to be assumed that it would be prejudiced in his favour, I cannot see that it
would be in the member's own interest for the matter to be dealt with by the Committee. The
courts and legislature have over the years built up a formidable body of law and codes of practice
16
Attorney-General of Ceylon v. De Livera, (1962) 3 All ER 1066 (PC).

to achieve fair treatment of suspects and persons ultimately charged and brought to trial. Again,
unless it is to be assumed that his peers would lean in his favour, why should a member be
deprived of a jury and an experienced judge to consider his guilt or innocence and, if appropriate,
sentence? Why should the public be similarly deprived?"
Section 73-A of the Crimes Act, 1914 in Australia and Section 108 of the Criminal Code in
Canada are statutory provisions that make the acceptance of a bribe by parliamentarians, an
offence. The House of Commons, in 1947 and in 1995, has resolved that no member could, for
consideration, reward or fee, raise an issue in the House. Section 14(a) of the Ceylon Bribery
Act, 1954 seeks to punish both the bribe-giver and bribe-taker in case of bribery of judicial
officers and members of either the Senate or the House of Representatives. The provision has
been held to prevail over the privilege claim made by the member. 17But, the plain words of
Articles 105(1) and (2), that the majority in JMM case found compelled to apply, has left little
room for recognising the changes taking place the world over. The National Commission for
review of the Constitution in its report18submitted in 2002 has in fact recommended that Article
105(2) ought to be amended:
"5.15.6. The Commission recommends that Article 105(2) may be amended to clarify that the
immunity enjoyed by the Members of Parliament under parliamentary privileges does not cover
corrupt acts committed by them in connection with their duties in the House or otherwise.
Corrupt acts would include accepting money or any other valuable consideration tospeak and/or
vote in a particular manner. For such acts they would be liable for action under the ordinary law
of the land. It may be further provided that no court will take cognizance of any offence arising
out of a member's action in the House without prior sanction of the Speaker or the Chairman, as
the case may be. Article 194 (2) may also be similarly amended in relation to the Members of
State Legislatures."
Perhaps, one limitation on the privilege to vote can be found in the Constitution (Fifty-second
Amendment) Act, 1985 and the anti-defection rules framed there under. The disobedience of the
17
Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p. 168.
18
Subash C. Kashyap: Anti-Defection Law and Parliamentary Privileges (2nd Edn.) p. 100

party whip could lead to disqualification of a member. It applies only to voting and not to any
other right of a member like his privilege regarding speech.19
REGARDING STATUTORY LAW
This brings us to Article 105(3) of the Constitution. The provision has been the cause of a great
deal of confusion,throughout. Article 105(3), as originally framed, provided that until the law
relating to parliamentary privilege is codified, theprivileges of the House would be the same as
those of theHouse of Commons that existed at the commencement of theConstitution. In the
Constituent Assembly Debates, Dr. Ambedkar remarked that South Africa has passed a law and
codified the law of privileges. The provision Article 85(3) of the Draft Constitution was passed
with the hope of framing statutory law within a short time-frame. 20The criticism even then was
that the provision was vague and that the reference to the law of another country was uncalled
for.21No attempt at codification was made by Parliament or the legislatures. After the
Constitution Forty-second and Forty-fourth Amendment Acts of 1976 and 1978 respectively, the
original Article 105(3)has been substituted. The present Article 105(3) preserves the privileges
existing until the coming into force of the Forty fourth Amendment Act pending legislation on
the subject. The change is cosmetic and in substance the article remains the same. We thus have
a transitory provision in force for decades. The reluctance to codify the law of privileges appears
to be based on a misconception that such codification would lead to increased interference by the
courts. A former Speaker of the Lok Sabha has stated the following in the course of an article22:
"It is provided that the privileges of the parliamentarians maybe codified. However, on one hand
there is a pressing demand made by the media persons to make a law, providing for the
privileges, on the other hand, Members of Parliament and most of the Presiding Officers have
opposed the move to codify them on the ground that as the judicial interpretation of the law is the
responsibility of none else but the judiciary. If privileges are codified, the matters would be taken
to the courts and the Members of Parliament and the Presiding Officers would be asked to
19
Constituent Assembly Debates, Vol. 10, p. 373
20
Constituent Assembly Debates, Vol. 8, p. 143.
21
Shivraj V. Patil "Power, Privileges and Duties of Parliamentarians", Journal of Constitutional and Parliamentary
Studies, Vol. XXXV, Nos. 1 and 2, p. 17.
22
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

subject themselves to the jurisdiction of the judiciary and that would affect the equality between
three wings of the Government and ultimately affect the privileges of the parliamentarians to
express their views without fear or favour."
It must be remembered that Article 122 of the Constitution does expressly bar the jurisdiction of
courts in the affairs of the House. The Court has even refused to enquire into the validityof the
passing of a law on the ground that several members were under preventive detention. 23But,
parliamentarians appear to be wary that the Court by declaring itself to be the final authority on
the interpretation of the Constitution and the laws would interfere in its functioning. The limits of
parliamentary privilege, particularly in this uncodified scenario has become a matter of law. In
such a situation, it is a moot question if by avoiding codification of the privileges, as
contemplated by the Constitution, greater powers are being retained by Parliament. It does
appear that codification is a distant dream as the first conference of the Chairmen of Committees
of Privileges of Parliament and State Legislatures in India held in 1992, has unanimously
resolved that there should be no codification of privileges. 24In fact, the Constitution Review
Committee hassaid that privileges are not meant to be privileges against the people or against the
freedom of the press. It has been recommended as follows25:
"5.15.3 ... The Commission recommends that the time has come to define and delimit privileges
deemed to be necessary for the free and independent functioning of Parliament. It should not be
necessary to run to the 1950 position in the House of Commons every time a question arises as to
what kind of legal protection or immunity a member has in relation to his or her work in the
House."
If a law is made in exercise of power under Article 105(3), it would undoubtedly have to satisfy
the test of constitutionalitybefore the courts. The argument that law made in exercise of this
power would be outside the scope of Article 13 of theConstitution has been repelled by the
Supreme Court.26But, inthe present situation, when no law is made but nonetheless privileges are
claimed and exercised by the House under thelatter part of Article 105(3) itself, it puts the
23
M.N. Kaul& S.L. Shakdher: Practice and Procedure of Parliament (5th Edn.) p. 219.
24
Report of the National Commission to Review the Working of the Constitution (Vol. I, March 2002) p. 167.
25
Special Reference No. 1 of 1964, (1965) 1 SCR 413.
26
Special Reference No. 1 of 1964, (1965) 1 SCR 413.

fundamental rights of the citizen under peril and leads to disputes and judicial adjudication. The
courts are forced to enter an arena that they would normally avoid.
REGARDING REGULATION INTERNAL PROCEEDING
The House has the exclusive right to regulate its own internal proceedings. The Governor is
vested with the power to summon the Session of the State Legislative Assembly. But he does not
have any Constitutional authority to direct the Speaker of an Assembly about the manner in
which the proceedings of the House should be conducted.
The procedure is laid down in the Rules of Business of the House. To strengthen this right,
Article 122 (Article 212 in case of State Legislature) expressly provides that the validity of any
proceedings shall not be called in question on the ground of any alleged irregularity of procedure
and no officer or member of Parliament in whom powers are vested by or under the Constitution
for regulating the procedure or the conduct of business or for maintaining order in Parliament
shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
RIGHT TO PUNISH FOR THE CONTEMPT OF HOUSE
It is right of every house of the legislature to punish its members or non- members for contempt
or breach of privilege of the house. It has been established in India that a house may punish not
only for the present contempt but also for the past contempt.
After coming to power in 1977 elections, the Janta Party moved a resolution in the Lok Sabha
that Mrs. Indira Gandhi, the former Prime Minister, Mr. R.K. Dhawan, her former Additional
Private Secretary and Mr. D. Sen, the former Director of CBI, has committed a breach of
privilege, contempt, of the house by causing obstruction, intimidation, harassment and institution
of false cases against four officers who were deputed to collect information relating to Maruti
Udyog Ltd., installing imported machinery in violation of licence regulations. A privileges
committee was constituted to inquire into the allegation.
The committee found Mrs. Indira Gandhi guilty of committing the breach of privilege by
preventing parliament from knowing the violation of license regulations by the Maruti Udyog
Ltd. She committed a further breach of privilege and contempt of the house by refusing to take

oath/ affirmation before the privileges committee and by casting aspersions on its member.
Accordingly, she was held guilty and was expelled from the membership of Lok Sabha and
sentenced to jail till the house was prorogued. She accepted the sentence.
But, when in 1980 elections, the Congress Party came to power defeating the Janta Party, a
resolution was got passed in Lok Sabha rescinding the earlier resolution and it was held that she
did not commit any contempt of the parliament and that the resolution was politically motivated.
REGARDING PRIVILEGES AND FUNDAMENTAL RIGHTS
The advisory opinion rendered by the Supreme Court in the case of Keshav Singh27arose out of
the exercise of one of the most important privileges of a legislature i.e. to punish for contempt.
Such cases have arisen out of the zealousness of the courts to protect the fundamental rights of
the citizen and the legislative bodies to protect their privileges. In this situation, the interest of
the nation is twofold i.e. of free and frank discussion in the House and also to safeguard the
dignity of itscitizens.
The Supreme Court was called upon to decide on the jurisdiction of the High Court to entertain
and deal with the petition filed by Keshav Singh complaining of the violation of his fundamental
rights on account of the action of the assembly. The question arose whether the fundamental
rights of the citizen itself could be subject to the parliamentary power of privilege. It must also
be remembered that in M.S.M.Sharma, the Supreme Court had already held that the right tofree
speech of every citizen under Article 19(1)(a) is subject to the privilege of the House. The
Supreme Court in Keshav Singh opined that the violation of Article 21 on account of exercise of
powers under Article 194(3) could be examined by the Court. The Court proceeded on the basis
that it cannot look as kance if an allegation of violation of the fundamental rights of a citizen is
brought before it on account of the action of a legislative body. The Committee of Privileges of
Parliament has, however, opined that the majority opinion is wrong. 28If the organs of the
Government are unsure on what is right then the citizen and the nation will suffer.
A stand-off occurred in Tamil Nadu. The Speaker of the assembly issued a warrant for the arrest
of an MLA, R.Tamrai kani, for violating the privileges of the House by hitting and causing
27
"Fundamental Rights and Parliamentary Privileges", Calcutta Weekly Notes, Vol. 96, Editorial Notes, p. 29.
28
"Fundamental Rights and Parliamentary Privileges",Calcutta Weekly Notes, Vol. 96, Editorial Notes, p. 29.

grievous injuries to the Agriculture Minister in the assembly when the session was going on. The
High Court on a habeas corpus petition ordered his release. He was released, but within a few
minutes he was rearrested on the order of the Speaker. The High Court on a second habeas
corpus petition ordered his release. So the possibility of these kinds of conflicts between the
courts and the legislature can occur. The question would arise as to the law that should govern a
criminal act done within the House. Is it a matter of mere privilege or a matter to be dealt with by
a court of law? If a murder is committed in the House then the ordinary law of the land would
obviously apply. A question would also arise as to the fundamental right of a citizen who could
end up being imprisoned twice over for the same infraction. His fundamental right under Article
20(2) of the Constitution, which bars a person being prosecuted and punished for the same
offencen more than once, would be jeopardised since the privilege action would not be a trial by
a court. It can only be hoped that when the law of privileges is codified adequate thought would
bebestowed on these aspects.
In KihotoHollohan29the Court was called upon to decide intricate questions of constitutional law
touching upon the nature and limits of the powers of the Speaker of the House andthe scope for
judicial intervention in respect of exercise ofpower by the Speaker. The Supreme Court by
majority heldthat the Speaker while adjudicating on disputed disqualification under the Tenth
Schedule to the Constitution exercises judicial power and that decisions rendered are subject to
judicialreview. The Court did, however, hold that the Speaker of theHouse holds an exalted and
pivotal position in a parliamentarydemocracy and is the guardian of the rights and privileges
ofthe House. The vesting of adjudicatory powers on such an authority was upheld. It was held
that the Court could at best consider the correctness of the ultimate decision but could not pass
orders at the interlocutory stage, except in grave circumstances, or at any stage prior to the
making of the decision.
In Gunupati Keshavram Reddi v. Nafisul Hasan,30one Home Minister was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for
contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s custody. On
his applying for a writ of habeas corpus on the ground that his detention was in violation of
Article 22(2), the Supreme Court quashed the detention and ordered his release as he had not
29
KihotoHollohanv. Zachillhu, 1992 Supp (2) SCC 651.
30
AIR 1954 SC 636

been produced before a Magistrate within 24 hours of his arrest as provided in Article 22 (2).
This decision, therefore, indicated that Article 194 (or Article 105) was subject to the
fundamental right guaranteed under Article 22(2) in Part III of the Constitution.
However, in M.S.M. Sharma v. S.K. Sinha31 it was also contended by the petitioner that the
privileges of the House under A.194 (3) are subject to the provision of Part III of the
Constitution. In support of his contention, the petitioner relied on the Supreme Court’s decision
in Gunupati Keshavram Reddi v. Nafisul Hasan.32 But, in Sharma’s case, the Supreme Court held
that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under
Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any
violation of it.
In Re Under Article 14333the Supreme Court explained the proposition laid down in M.S.M.
Sharma case and said:
‘We do not think it would be right to read the majority decision as laying down a general
proposition that whenever there is a conflict between the provisions of the latter part of Article
194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must
always yield to the former. The majority decision, therefore, is taken to have settled only that
Article 19(1)(a) would not apply and Article 21 would.’
The rules of each House provide for a committee of privileges. The matter of breach of privilege
or contempt is referred to the committee of privileges. The committee has the power to summon
members or strangers before it. Refusal to appear or to answer or to knowingly to give the false
answer is itself a contempt. The committee’s recommendations are reported to the House which
discusses them and gives its own decision.This once again brings us to the essential issue of
whether the existence, limits and exercise of the privileges of the Housevis-…-vis the
fundamental rights of a citizen is ultimately determined by the House itself or by judicial
pronouncements. The judicial view34is clearly that the "officers and members of legislature
cannot claim immunity when they exercise their powers in a manner opposed to the
31
AIR 1959 SC 395
32
AIR 1965 SC 745.
33
In Re Under Article 143, AIR 1965 SC 745.
34
SudarsanaBabuv. State of Kerala, 1983 KLT 339 affirmed in State of Kerala v. SudarsanBabu, 1983 KLT 764
(FB).

Constitution" (KLT p. 341, para 6) and that the power under Article 226 or Article 32 of the
Constitution can be invoked against the legislature.
THE GK REDDY CASE
In G.K. Reddy v. Nafisul Hassan35 ,G.K. Reddy, the editor of the magazine Blitz was committed
for contempt by the Uttar Pradesh Legislature. In the Supreme Court, the Attorney General
admitted that Reddy had not been produced before a Magistrate within 24 hours. The Supreme
Court held that his Fundamental Right under Article 22(2)18 had been violated and ordered his
release. However,36 the Court did not enter into the larger question of whether privileges would
be subject and subservient to Fundamental Rights. The case created that impression
however,although the Court did not explicitly say so in its judgment.
THE MSM(SEARCH LIGHT) CASE
Five years later, the GK Reddy case was overruled by the Supreme Court in Pandit M.S.M.
Sharma v. S.K.Sinha20(I)37 I38(hereinafter referred to as the ‘Searchlight case’). In 1954, the
Editor of a newspaper Searchlight was held guilty of contempt of the Bihar State Legislature
when his newspaper carried a report of proceedings expunged by the Speaker of the Bihar
Legislature. The editor applied to the Supreme Court seeking an injunction of the contempt
proceedings, defending the publication of the report as being protected by the freedom of speech
and expression guaranteed by Article 19(1)(a).39 This argument was in furtherance of the general
proposition that the guaranteed Fundamental Rights of citizens would be applicable to the
privileges and that the privileges would be subject and subservient to them. He further contended
that his right to life and personal liberty guaranteed by Article 21 would be violated if he were
produced before the Committee of Privileges of the Bihar Legislature, which was empowered to
order his imprisonment. He argued that the procedure likely to be followed by the Committee
was not ‘law’ within the meaning of Article 21. The arguments made on behalf of MSM Sharma
may be summed up thus:
35
AIR 1954 S.C. 636
36
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 100 (Wadhwa & Co., Nagpur 5th ed. Reprint 2006).
37
AIR 1959 S.C. 395
38
A petition was filed by the same petitioner seeking a review of the earlier judgment. The case was dismissed on
grounds of Constructive Res Judicature. See MSM Sharma v. S.K. Sinha, AIR 1959 S.C. 60.
39
Constitution of India. art. 19(1)(a).

1. The Article 19(1)(a) argument: The intent of the Constituent Assembly was that the privileges
should be codified eventually. Once codified, they would be ‘law’ within the meaning of Article
13(2) and therefore liable to be struck down if they violated any Fundamental Right. Since a
codified ‘law’ would be subject to Article 19(1)(a), it could not have been the intention of the
Framers that the law when still uncodified, should not be so subject. It was urged that the
uncodified law too should be made subject to the Fundamental Right of speech and expression
guaranteed by Article 19(1)(a).40
2. The Article 21 argument: It was urged that the right to life and personal liberty guaranteed by
Article 21 could be deprived in the proceedings before the Committee of Privileges. It was
argued that the life or personal liberty of a citizen could only be abrogated by a procedure
established by ‘law’ and the procedure likely to be followed by the Committee was not ‘law’
within the meaning of Article 21. The counsel argued that the Court should strike down the
summons of the Committee since the exercise of that privilege could result in a violation of a
Fundamental Right. The counsel for MSM Sharma cited the G.K. Reddy case as a precedent for
this second argument. It was argued that the Court would be bound by GK Reddy case hence the
Fundamental Right guaranteed by Article 21 would have primacy over the privilege conferred by
Article 194(3). The Article 21 argument pre-supposed that privileges would be subject and
subservient to Fundamental Rights.41
By a majority vote of 4:1, the Constitution Bench led by Chief Justice Das held as follows:
1. The Court held that the freedom of speech in a Legislature contained in Article 194(1), 42
being specific as against the general freedom of speech under Article 19(1)(a), the general
restrictions that applied to 19(1)(a) by virtue of Article 19(2) would not apply to specific
freedom of speech under Article 194(1).
2. As regards Clause 2 of Article 194, it was held that it was not the intention of the Framers to
make the immunity for speeches made or votes given in a legislature subject to the Fundamental
Right guaranteed by Article 19(1)(a). The Court observed that the immunity in Clause 2 of
40
Pandit M.S.M. Sharma v. S.K.Sinha AIR 1959 S.C. 395, 408 at para 25
41
Pandit M.S.M. Sharma v. S.K.Sinha AIR 1959 S.C. 395, 410 at para 29.
42
Constitution of India. Art. 194- Powers, Privileges etc. of the Houses of Legislature and of the members and
committees thereof—(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of Legislature, there shall be freedom of speech in Legislature. This corresponds to art. 105(1) which
lays down a similar privilege for the Union Parliament.

Article conspicuously lacked the phrase, ‘subject to provisions of the Constitution’ which was a
part of Article 194(1).43
3. Applying the rule of Harmonious Interpretation, the Court held that the more specific
privileges in Art. 194 available to Parliament would override the general rights of their
constituents contained in Article 19(1)(a) and hence that the privileges of a Legislature would not
be subject to Fundamental Rights.44
4. The Court overruled the GK Reddy case on the ground that the GK Reddy case was a result
of a concession made by the counsel (the counsel had conceded that Reddy had not been
produced before a Magistrate) and hence not a ‘considered opinion’. In other words, the GK
Reddy had not expressed an opinion one way or another and was not a binding precedent.45
5. The Court observed that in case if the editor was to be produced before the Committee of
Privileges in the Bihar Legislature, the rules framed by the Assembly under Article 208 would
constitute a procedure established by law,46 and therefore rejected the argument that Article 21
could be violated. Therefore on the one hand the Court negatived MSM Sharma’s contention that
the privileges would be subject and subservient to Fundamental Rights, yet paradoxically it
examined the merits of the Article 21 argument, which as we have seen, presupposed that
privileges would be subject to Fundamental Rights. Having concluded that privileges are not
subject to Fundamental Rights, the Court ought to have dismissed the Article 21 argument
altogether for the same reason viz. that the privileges are not subject to the right guaranteed by
Article 21. Inexplicably, the Court not only considered the argument but while rejecting the
argument, rejected it for a very different reason –that the rules framed by the Legislature
constitute ‘law’ within the meaning of Article 21.
It must be questioned therefore: What if the Court had found that the rules framed by the
Legislature do not constitute a procedure established by ‘law’? That the right guaranteed by
Article 21 would indeed be violated if the MSM Sharma was produced before the Committee. In
such a scenario, would the court have taken its conduct to its logical conclusion? Would it have
43
44
Id.
45
46
‘Procedure established by law’ was interpreted to mean a fair, just and reasonable procedure only later

applied Article 21 to the privileges, striking down the exercise of the privilege by virtue of which
Sharma was summoned and could possibly be imprisoned?
It is important to bear in mind that the Court made no comment whatsoever on whether Article
21 would override privileges. The Court merely held that Article 19 (1)(a) would not override
privileges. It proceeded to examine the Article 21 argument on merits without clarifying the
larger question as to whether Article 21 was to apply to privileges as a matter of rule, even
though Fundamental Rights in general and Article 19 (1)(a) in specific, were found not to apply
to and override the privileges.
This unanswered question formed the crux of the judicial interpretations on which the 1964
Presidential Reference and subsequently, the case of Raja Ram Pal turned. Both these Benches
imputed to the Court’s scrutiny of the Article 21 argument, an indication that certain Rights
would override privileges and that the privileges would be subject and subservient to these select
Fundamental Rights even if they were not so subject to the right guaranteed by Article 19(1)(a).
THE 1964 PRESIDENTIAL REFRENCE CASE47
In 1964, one of the first open standoffs between the Courts and the Legislatures surfaced. The
Uttar Pradesh Legislature found a private citizen, Keshav Singh guilty of Contempt of the
Legislature. Keshav Singh had committed a breach of privilege of MLA NN Pandey by printing
and publishing certain contemptuous pamphlets. He was summoned to the Legislature.
Thereafter he wrote a disrespectful letter to the Speaker and acted in an unruly manner when
being reprimanded in the Legislature A warrant was issued by the Speaker for Keshav Singh’s
detention for a period of seven days. However the warrant did not contain the facts constituting
the alleged contempt. Keshav Singh moved the High Court of Uttar Pradesh seeking issuance of
the writ of Habeas Corpus. A Division Bench ordered his release on interim bail pendingdecision
on the habeas corpus petition. In an unprecedented move, the Uttar Pradesh Legislature issued
Contempt notices not just to the lawyer of the accused but also to the Judges of the High Court
for having entertained the petition. The Legislature passed a resolution to the effect that all of
them including the High Court judges were to be produced before it in custody. This marked the
beginnings of a first rate Constitutional crisis. The following day, Mandamus petitions were filed
47
(1965) 1 S.C.R. 413.

by the judges as well as the advocate for Keshav Singh before the Uttar Pradesh High Court. A
Full Bench of the Uttar Pradesh High Court comprising 28 Judges (all except the two Judges)
made directions restraining the Speaker of the Legislature from issuing warrants and restraining
the Marshal of the House from executing the warrant if it had already been issued.
Taking note of the rapidly deteriorating situation, the President of India exercising his
discretionary power of a Reference,48 sought the Supreme Court’s opinion on the issues involved.
A bench of seven Judges opined upon a multitude of issues connected with the controversy. In
doing so, the interpretation of the Searchlight case became sine qua non. The Court led by Chief
Justice Gajendraghadkar placed a radically different interpretation on the law of privileges,
making them generally subject to Fundamental Rights and secured for itself the power to
determine the legality and constitutionality of legislative procedure. However, being an advisory
opinion, it did not enjoy the same force of an actually decided case.
By a vote of 6:1, the Court held that the correct interpretation of the Searchlight case would be
this: While Article 19(1)(a) would not override the privileges, Article 21 would. Further it was
held that if Article 21 applied to privileges then Article 2036 would also conceivably apply.
However, the Court did not stop there. The majority further went on to state that the general
proposition that privileges would not be subservient to Fundamental Rights was incorrect. The
Judges ruled that the Privileges may or may not be subservient to the remainder of the
Fundamental Rights; however the argument that they were certainly not subservient was
incorrect. Whether the privileges were subservient to a particular Fundamental Right and
therefore liable to be struck down in case of a conflict with that right, would have to be
determined on a case to case basis, as and when specific Fundamental Rights were alleged to
have been violated by the exercise of a privilege.
Moreover the Court attributed all of these findings to the Searchlight case ratio. The majority
held that the Searchlight Court had considered the Article 21 argument on merits. Hence it
concluded that the Searchlight Court did not preclude the application of all Fundamental Rights
to privileges; it precluded the application of Article 19(1)(a) only. Why else would the
Searchlight Court have considered the Article 21 argument at all, the majority asked? The
48
Constitution of India. Art. 143

Searchlight Court, the majority concluded, never expressed an opinion that privileges are not
subject to Fundamental Rights in general; it merely expressed an opinion that privileges are not
subject to Article 19(1)(a) specifically. The fact that it inquired into the Article 21 argument on
merits, was taken on proof that the Searchlight Court must have intended to make the privileges
subject to Article 21 at least:
‘Therefore we do not think it would be right to read the majority decision as laying down a
general proposition that whenever there is a conflict between the provision of the latter part of
Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the
latter must always yield to the former. The majority decision, therefore, must be taken to have
settled that Article 19(1)(a) would not apply, and Article 21 would.’49
The conclusive dictum of the Court may be summarised as follows: The right to speech and
expression guaranteed by Article 19(1)(a) would not override the privileges. The Court held thus
because it found itself bound by the Searchlight case.
The right to life and personal liberty guaranteed by Article 21 would override privileges. The
Court attributed this to the inquiry on merits of the Article 21 argument in the Searchlight case. If
privileges were subject and subservient to the right guaranteed by Article 21 they would also be
subject to the right guaranteed by Article 20. Finally, other Fundamental Rights may override the
privileges, but these would have to be determined as when they were impugned, on a case to case
basis. In order to appreciate the rationale of the pronouncement in this case, it is necessary to
step away for a moment from a legal analysis and dwell into the implication of the task faced by
the learned Judges:-
1. The case was a Presidential Reference and therefore stood on a lower footing than an
ordinary pronouncement. The judgment would be strictly ‘advisory’.50
2. The question before the Judges contained much more than a mere analysis of a facet of
law. The ruling would set the tone in future clashes between the Judiciary and the
Legislatures in the country. It was of singular importance that the independence of the
49
(1965) 1 S.C.R. 413, 451.
50
See generally In re. Special Courts Bill AIR 1979 S.C. 478, In re. Cauvery Water Disputes Tribunal AIR 1992
S.C. 522, In re. Kerela Education Bill AIR 1958 S.C. 956

Judges be maintained. A ruling favour of the Legislatures may have been diastrophic to
the cause of an independent Judiciary.
3. At stake was the dignity of Judges. If the Legislature was allowed to call Judges to the
Bar of the House for Contempt, it may have struck the death knell for the maintenance of
a Court’s dignity.
4. Lastly, the Court could not allow the impression that it had ruled in favour of the Judges
due to a vested interest in the matter being the Apex Court of the land. Necessarily,
thejudgment became a fine balancing act. The Court did not take an activist approach. It
chose not to overrule the Searchlight case although it had the strength to do so.40 Instead,
the majority preferred to show themselves bound by the Searchlight judgment, attributing
to it the very conclusions it wished to draw. Having so interpreted it, the majority
forthwith found itself bound by the Searchlight judgment.
The ruling was rejected by the Uttar Pradesh Legislature as being advisory and obiter dicta.
However, it marked the beginning in the subservience of privileges to Fundamental Rights.
The reasoning was adopted in the Raja Ram Pal case giving it the force of settled law.
THE RAJA RAMPAL CASE 51
It has been already enunciated that the events that led to the Raja Ram Pal case, 11 MPs were
caught taking bribes on camera by a news-channel. The video which was telecast repeatedly, led
to an uproar. In a quick reaction Parliament stepped in to control the damage. Immediate
inquiries were ordered and expeditious verdicts sought. The Committee of Privileges which
heard the matter found all the MPs guilty and recommended their immediate disqualification.
The recommendations were accepted and all 11 MPs were disqualified. The MPs filed writ
petitions in the Supreme Court seeking reinstatement.
For the first time since 1964, the Supreme Court had the opportunity of settling the law as
regards Parliamentary Privileges once and for all. By a vote of 4:152 the Court formalised the
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha JT 2007 (2) SC 1.
51
The majority comprised of CJI Sabharwal, Balakrishnan and D.K. Jain, JJ, with Thakker, J. concurring.
52
Raveendran, J. dissented

change sought to be brought about by the Presidential Reference and secured for itself the power
to review the exercise of privileges by Parliament.
According to Shubhankar Dam,53 the judgment formed part of “the larger canvas of political
reforms that the Supreme Court has haltingly pursued in the last five years and in the preceding
period.”
The conduct of the MSM Sharma Court was given greater import than the actual text of its
judgment. While this is a continuation of the Presidential reference, the Raja Ram Pal court had
none of the aforementioned constraints or challenges which the Presidential Reference Bench
faced.
The Court did lay down in unequivocal terms that privileges may be subject to Fundamental
Rights on a case to case basis, but its reasoning was derived entirely from the Presidential
reference ratio and therefore suffers from the same fallacy. The majority concluded that they
were “unable to fathom any reason why the general proposition that fundamental rights cannot
be invoked in matters concerning Parliamentary privileges should be accepted.”
However the Court also unambiguously reserved for itself the power to review Parliamentary
proceedings. Rejecting the Doctrine of Exclusive Cognisance54 of Parliament, the Court held that
the doctrine was applicable only in England where Parliament was sovereign and was incapable
of being imported into India’s limited Constitution with its system of checks and balances
Relying on Constituent Assembly Debates, the court concluded that Article 122 was intended to
prohibit cases of interference with internal Parliamentary proceedings on the ground of mere
procedural irregularity
““The touchstone upon which Parliamentary actions within the four-walls of the Legislature
were examined was both the constitutional as well as substantive law. The proceedings which
may be tainted on account of substantive illegality or unconstitutionality, as opposed to those
suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article
53
Shubhankar Dam, “Parliamentary Privileges as Facade: Political Reforms and the Indian Supreme Court” 2007
Sing. J. Legal Stud. 162
54
The Doctrine stipulates that Parliament has the exclusive power to deal with breaches of privileges. As per the
Doctrine, the Supreme Court has no jurisdiction to entertain even, a matter arising from a breach of privilege, let
alone try it. It is in furtherance of this Doctrine that the Speaker of the Lok Sabha refused to appear before the
Supreme Court for to do so would be to accept tacitly that the Parliament does not have exclusive jurisdiction.

122(1) inasmuch as the broad principle laid down in Bradlaugh acknowledging exclusive
cognisance of the Legislature in England has no application to the system of governance
provided by our Constitution wherein no organ is sovereign and each organ is amenable to
constitutional checks and controls, in which scheme of things, this Court is entrusted with the
duty to be the watchdog of and guarantor of the Constitution”.55
“Article 122(1) thus must be found to contemplate the twin test of legality and constitutionality
for any proceedings within the four walls of Parliament… Any attempt to read a limitation into
Article 122 so as to restrict the court’s jurisdiction to examination of the Parliament’s procedure
in case of unconstitutionality, as opposed to irregularity would amount to doing violence to the
constitutional text.”56
The Supreme Court judgment in the Raja Ram Pal case is the first binding change in the law of
privileges. The Court whether out of a desire to bring about political reform or otherwise, has
conclusively wrested for itself the power to review an exercise of privileges. The review rests
on the tests of legality and constitutionality. While legality refers to the absence of bonafides,
constitutionality includes the test of Fundamental Rights. As a result, in every case where a
privilege interferes with or abrogates any Fundamental Right, the exercise of the privilege is
liable to be struck down. The judgment makes Parliamentary privileges subservient to
Fundamental Rights on a case to case basis and makes the Supreme Court the ultimate arbiter
in determining when a Right has been violated and when it has not. The judgment is in keeping
with the central theme of separation and balance of powers which permeates through our
Constitution and in step with the Supreme Court’s activist approach.
It is generally believed and occasionally confirmed, that in ruling as they do, Judges consider
the broader aspect, of the effect the ruling may ultimately have. 57 On more than one
occasion,the Supreme Court has accorded Constitutional interpretations that have either been
admired as innovative and avant-garde or castigated as being tenuous and untenable. Whether,
the newfound applicability of Fundamental Rights was premeditated or perchance, this
55
JT 2007 (2) S.C. 1 at para 362
56
JT 2007 (2) S.C. 1 at para 382.
57
Former Chief Justice of India, Hon’ble Justice Y.V. Chandrachud, ‘[W]e consciously deliver wrong judgments.
For example, if an unfortunate woman is pitted against a callous husband or in divorce cases, we try to decide as far
as possible in favour of the woman’ in meLAWnge, Government Law College, Mumbai, annual magazine 2006-07,
011.

landmark interpretation to the law of privileges in India will be judged on its effect and efficacy
for the constituents whose representatives make up Parliament.
CONCLUSION
After doing the research work on the project “Parliamentary Privileges and Fundamemtal
Rights” the I am is in a position to say that there is a clear demarcation as to what all rights
and privileges are absolute and what is not. In India Legislative Assemblies and Parliament
never discharge any judicial function and their historical and constitutional background does
not support their claim to be regarded as courts of record in any sense. No immunity from
scrutiny by courts of general warrants issued by House in India can, therefore, be claimed.
If the conflict still arises the solution to avoid conflicts lies in understanding the relationship
among the institutions. The doctrine of separationof powers coined by Aristotle and developed
by Locke, Montesquieu58and others has found expression in the Constitution of many countries.
The categorisation of thepowers of the State is intended to prevent concentration of power in any
single group of persons and to let the mostcompetent organ perform the duties of the State
withoutinterference from the others. The balance of power in anyGovernment is ensured by a
system of checks and balances thateffectively prevent any one organ from becoming supreme.
Thethree branches are to share power and function withoutencroaching upon the powers
confided to the others.
Both the Parliament and State Legislatures have a duty to look carefully before making any law
so that it doesn’t harm other rights. It is also a duty of the members to properly use these
privileges and not misuse them for alternate purposes that are not in the favor of general interest
of nation and public at large.
Thus what we must keep in mind is the fact that “power corrupts and absolute power corrupts
absolutely”. For this not to happen under the privileges granted, the public and the other
governing body should always be on vigil.
The Court has evolved the proper doctrine to determine the privileges of the parliament that the
Indian parliament can adopt. The Doctrine of Pen, Ink and Indian rubber theory. In Hardwari
58
L'Espirit des Lois (1748).

Lal v. The Election Commission of India59 Court explained this Doctrine. Justice

Sabharwal made the following observation: “I am of the view that it is essentially tautologies to
first read something into the Constitution suggested on behalf of the respondents, one is to first
read the King, the Queen, the House of Lords or the Acts of Attainder into the Constitution and
thereafter to proceed to nullify them on the plain ground that by the very nature of things they
cannot form part of a Republican Constitution.
The pen and ink theory, therefore, in effect becomes indeed a pen, ink and India Rubber theory
whereby one first writes something entirely alien to the Constitution within it and the next
moment proceeds to rub it off. It is well-settled that when a statute includes something in it by a
reference to another provision then only that can be deemed to be included which is compatible
with the parent provision. To my mind, therefore, the plain method of construing Article 194(3)
is the usual and the settled one of not reading something into it which is glaringly anomalous,
unworkable and irrational.”
I, therefore, suggest that there need not be an attempt to find out the conflicts and highlight them.
What is called for is aconstructive approach in appreciating the role of each of the institutions
and the circumstances under which a slight inroad or the presumed inroad is made by the other
organ in the trinity.If such a constructive approach is made, the goal of the Constitution will be
achieved and the rationale behind not adopting the rigid doctrine of separation of powers by
theFounding Fathers of the Constitution would also be justified.
59
1977 (2) Punj. & Har. 269

BIBLIOGRAPHY
BOOKS
 Arvind P Datar: Commentary on the Constitution of India,( Lexis Nexis 2nd edition, 2007)
 H.M.Seervai, Constitutional Law of India,(Universal Publications, 4th edition,)
 M.P.Jain Constitutional Law of India,(Lexis Nexis, 8th edition)
 D.D.Basu, Shorter Constitution of India,(Lexis Nexis, 15th edition)
 Dr. J.N.Pandey, Constitutional Law of India(Central Law Agency,56th edition, 2019)

ONLINE SOURCES
www.scconline.com
www.lexisnexis.com
www.manupatra.com
www.lexisadvance.com
www.indiankanoon.com

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JAMIA MILLIA ISLAMIA

PROJECT WORK ON CONSTITUTIONAL LAW

PRIVILEGES AND FUNDAMENTAL RIGHTS

SUBMITTED TO:- SUBMITTED BY:-

DR. ASAD MALIK HUZAIFA SALIM

ASSOCIATE PROFESSOR ROLL NO - 29

2ND YEAR (REGULAR)

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 MEANING AND DEFINATION OF PARLIAMENTARY PRIVILEGE

 RELEVANT PROVISION CONCERNING PARLIAMENTRY PRIVILEGE IN

 REGARDING STATUTORY LAW

 REGARDING REGULATION INTERNAL PROCEEDING

 REGARDING RIGHT TO PUNISH FOR CONTEMPT OF HOUSE

 REGARDING PRIVILEGES AND FUNDAMENTAL RIGHT

 THE GK REDDY CASE

 THE MSM (SEARCH LIGHT CASE)

 THE 1964 PRESIDENTIAL REFRENCE CASE

 THE RAJA RAMPAL CASE

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MEANING OF PARLIAMENTARY PRIVILEGE

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RELEVANT PROVISION CONCERNING PARLIAMENTRY PRIVILEGE IN INDIA

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Article 361-A is titled as “Protection of publication of proceedings of Parliament and State

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broadcasting station as it applies in relation to reports or matters published in a newspaper.” It is

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REGARDING STATUTORY LAW

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REGARDING REGULATION INTERNAL PROCEEDING

RIGHT TO PUNISH FOR THE CONTEMPT OF HOUSE

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REGARDING PRIVILEGES AND FUNDAMENTAL RIGHTS

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THE GK REDDY CASE

THE MSM(SEARCH LIGHT) CASE

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THE 1964 PRESIDENTIAL REFRENCE CASE47

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THE RAJA RAMPAL CASE 51

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Lal v. The Election Commission of India59 Court explained this Doctrine. Justice

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 H.M.Seervai, Constitutional Law of India,(Universal Publications, 4th edition,)

 M.P.Jain Constitutional Law of India,(Lexis Nexis, 8th edition)

 D.D.Basu, Shorter Constitution of India,(Lexis Nexis, 15th edition)