PARLIAMENTARY PRIVELEGES

INTRODUCTION: Parliamentary privileges are special rights, immunities and exemptions enjoyed by
the two Houses of Parliament, their committees and their members. They are necessary in order to
secure the independence and effectiveness of their actions.

Without these privileges, the Houses can neither maintain their authority, dignity and honour nor
can protect their members from any obstruction in the discharge of their parliamentary
responsibilities.

 The Constitution has also extended the parliamentary privileges to those persons who are
entitled to speak and take part in the proceedings of a House of Parliament or any of its
committees. These include the attorney general of India and Union ministers.
 Article 105 defines the privileges of the 2 houses of parliament. This provision doesn’t
exhaustively enumerate the privileges of 2 houses. It defines only a few specific privileges
but for rest, it assimilates the position of house to that of House of Commons in Britain.

PRIVILEGES

1. Freedom of speech (Art 105 and 194(1))

 Art 105(1) declares that there shall be freedom of speech in Parliament. Art 105(2)
provides that 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.
 Freedom of speech is subjected to the rules and standing orders regulating the
procedure of Parliament and to the provisions of the constitution. Art 121 and 211
imposes restriction on the freedom. These articles prohibit any discussion in Parliament
as well as legislature in respect of the conduct of any judge of SC or HC in discharge of
his duties.
 If the member exceeds limits imposed on his freedom, he can be dealt with by the
speaker or the House itself but not by a court.
 In Tej Kiran Jain v N. Sanjeeva Reddy, SC ruled that whatever is said in the Parliament
i.e., during the sitting of Parliament and in the course of business of Parliament, is
immunized. The members are only subject to the discipline of the speaker and house in
the matter.
 In PV Narsimha Rao v State, it was ruled that the expression “in respect of” in Art 105(2)
must be given a wide meaning so as to comprehend an act having a nexus with the
speech made or a vote given by member in Parliament. So interpreted, it would include
within its ambit bribe taking in order to make a speech or vote by a member in
Parliament. Therefore, bribe-taker MPs who had voted in Parliament against no-
confidence motion were held entitled to protection of Art 105(2). But member who
takes bribe but doesn’t vote is not immune to Art 105(2).
 In Sita Soren v UOI, the court held that when member had obtained bribe to make a
vote by a member in Parliament but had voted in favour of someone else, then, she
wouldn’t be immune under Art 105(2) as there was no nexus between bribe taking and
making a vote.
 Words spoken outside a house: A member is protected for what he says within the
house, but not for words spoken outside the House except when these are spoken in the
essential performance of his duty as a member.
2. Freedom of Publication of proceedings (Art 105(2) and 361A)
 Art 105(2) 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.
 It means that immunity is available in respect of such publication as was done by or
under the authority of the House. therefore, this protection doesn’t extend to
publication made by a private person without the authority of the house.
 As public has right to know about the parliamentary proceedings, Article 361A was
introduced which states that 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,
either House of the Legislature, of a State, unless the publication is proved to have been
made with malice.
 However, publication of any report of the proceedings of a secret sitting of a House is
not protected under Art 361A.
3. Rule-making power
 Article 118(1): Each House of Parliament may make rules for regulating, subject to the
provisions of this Constitution, its procedure and the conduct of its business.
 The procedure is thus regulated by: a) provisions of the constitution b) rules of
procedure and conduct of business made by the house c) directions issued by the
speaker/ chairman from time to time under those rules d) conventions, traditions or past
practices of the house
4. Right to regulate Internal proceeding
 The house has the exclusive right to regulate its own internal proceedings
 For conducting the proceedings of house, procedure is laid down in Rules of Business of
the house
 To further strengthen this right, Article 122 (1) expressly declares that the validity of any
proceedings in Parliament shall not be called in question on the ground of any alleged
irregularity of procedure. Article 122 (2) lays down that no officer or member of
Parliament in whom powers are vested by or under this Constitution for regulating
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.
 In Ramdas Athawale v Speaker, the court laid that it was a right of each house to be the
sole judge of the lawfulness of the proceedings of the house. While it was open to the
courts to scrutinise any illegality/unconstitutional procedure in Parliament, it could not
do so if the complaint was regarding any procedural irregularity.
5. Freedom from arrest
 According to this privilege, no member of Parliament or a State legislature shall be
arrested or imprisoned in a civil proceeding during a period of 40 days before and 40
days after the Session of the House. (Sec 135(a) CPC)
 This privilege doesn’t extend to arrests or imprisonment on a criminal charge or for
contempt of court or to preventive detention. According to the Lok Sabha rules, when a
member is arrested on a criminal charge or sentenced to imprisonment by a court or
detained by an executive order, the committing magistrate, judge or executive authority
should immediately intimate to speaker the fact of arrest, conviction or detention, its
reasons and the place of detention or imprisonment.
  No person (either a member or outsider) can be arrested, and no legal process (civil or
criminal) can be served within the precincts of the House without the permission of the
presiding officer.
6. Inquiries
 A house has power to institute inquiries and order attendance of witnesses and in case of
disobedience, to bring witness in custody to the bar of the house
7. Right to exclude strangers
 A house of parliament has a right to exclude strangers from its proceedings and hold its
sittings in camera.
 Rules 248 of Lok Sabha empowers chair, whenever he thinks fit to order the withdrawal of
strangers from any part of the house and when the house sits in a secret session, no
stranger is allowed to enter in the Chamber, lobby or galleries.
8. Right to prohibit the publication of proceedings
 Rules of procedure of house of people empower the chair to expunge any part of the
proceedings of the house
 In MSM Sharma v SK Sinha, the court held that the publication by a newspaper of a
portion of a member’s speech in the House which the speaker had ordered to be
expunged would amount to breach of privilege of the house for which it can take action
against the offending party. The effect in law of the order of the speaker to expunge a
portion of the speech of a member may be as if that portion had not been spoken.
9. Right to punish for the contempt of the house
 It is right of every House of legislature to punish its members or non-members for
contempt or breach of privilege of the house.
 Whether a person is guilty of contempt or not, is decided by Contempt’s committee.
 Keshav singh case

PRIVELEGES AND FR

In Gunpati K. Reddi v Nafisul Hussain, one Homi Mistry was arrested at Bombay under a warrant
issued by the speaker of UP Legislative Assembly for contempt of the House. He was flown to
Lucknow and kept in a hotel in the custody of the speaker. He filed writ petition of Habaes corpus
claiming illegal detention under Art 22(2) as he wasn’t produced before magistrate within 24 hours
of his arrest. Sc quashed the detention and ordered his release. The decision indicated that Art 194
or Art 105 was subject to FR guaranteed under Art 22(2).

In MSM Sharma v S.K. Sinha, SC held by a majority that the privileges enjoyed by a house of
Parliament under Art 105(3) or Art 194(3), weren’t subject to Art 19(1)(a) and therefore, a House
was entitled to prohibit the publication of any report of its debates or proceedings even if the
prohibition contravenes the FR of speech and expression of the publisher under Art 19(1)(a).

Any inconsistency between Art 105(3) or Art 194(3) and Art 19(1)(a) could be resolved by
‘harmonious construction’ of the two provisions, and Art 19(1)(a) being of a general nature must
yield to Art 105(3) or Art 194(3) which was of a special nature.

Reconsidering the question of mutual relationship between the FR and legislative privileges in the
Keshav Singh case, the SC held the Searchlight case excluded only Art 19(1)(a) and not other FR,
from controlling the legislative privileges. The court held that Art 21 would apply to parliamentary
privileges and a person would be free to come to the court for a writ of habaes corpus on the ground
that he had been deprived of his personal liberty not in accordance with law but for capricious or
mala fide reasons.