I.

PARLIAMENTARY PRIVILEGES

Meaning: Parliamentary privileges are special rights, immunities and

exemptions enjoyed by the two Houses of Parliament, their committees and
their members. These privileges are defined in Article 105 of the Indian
Constitution.

Why such Privileges?

These privileges are necessary in order to secxure independence and
effectives of their actions

Whom such privileges are entrusted

 To both the houses of parliament, their committees and their members

 People who are entitled to speak and take part in the proceedings of the
house i.e., Attorney General and Union of Minister
The provisions that grant legislators immunity from prosecution

 Article 105 –It deals with the powers, privileges, etc. of the Houses of
Parliament and of the members and committees thereof.
 Article 105(2)- No MP shall be liable to any proceedings in any court in
respect of anything said or vote given by him in Parliament and no person
shall be liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings.
 This provision exempts MPs from any legal action for any statement made
or act done in the course of their duties.
 Article 194(2)- A corresponding provision giving immunity to members of
state legislatures is contained under Article 194(2).
 Defamation – The defamation suit cannot be filed for a statement made in
the House
 Immunity to non-members- Attorney General of India or a Minister who
may not be a member but speaks in the House.
 Role of Speaker- In cases where a member oversteps or exceeds the
contours of admissible free speech, the Speaker of the House will deal with
it, as opposed to the court.
Limitatoins: Under these privileges, the members of Parliament are exempted
from any civil liability (but not criminal liability) for any statement made or
act done in the course of their duties.
 The privileges are claimed only when the person is a member of the
house.
 As soon as s/he ends to be a member, the privileges are said to be called
off.

Parliament has not made any special law to exhaustively codify all the
privileges. They are rather based on five sources:
 Constitutional provisions
 Various laws made by Parliament
 Rules of both the Houses
 Parliamentary conventions
 Judicial interpretations
Privileges:
o Freedom of Speech in Parliament:
 The freedom of speech and expression guaranteed to a citizen
under Article 19(2) is different from the freedom of speech and
expression provided to a member of the parliament.
 It has been guaranteed under Article 105(1) of the Indian
constitution. But the freedom is subject to rules and orders which
regulate the proceedings of the parliament.
Limitations:
 Freedom of speech should be in accordance with the constitutional
provisions and subject to rules and procedures of the parliament,
as stated under Article 118 of the Constitution.
 Under Article 121 of the Constitution, the members of the
parliament are restricted from discussing the conduct of the judges
of the Supreme Court and the High Court.
o Freedom from Arrest:
  The members enjoy freedom from arrest in any civil case 40 days
before and after the adjournment of the house and also when the
house is in session.
 No member can be arrested from the limits of the parliament
without the permission of the house to which s/he belongs so that
there is no hindrance in performing their duties.
 If the detention of any members of the parliament is made, the
chairman or the speaker should be informed by the concerned
authority, of the reason for the arrest.
 But a member can be arrested outside the limits of the house on
criminal charges against him under the Preventive Detention
act, the Essential Services Maintenance Act (ESMA), the National
Security Act (NSA), or any such act.
o Right to Prohibit the Publication of Proceedings:
 Article 105(2) of the Constitution, no person shall be held liable for
publishing any reports, discussions etc. of the house under the
authority of the member of the house.
 For paramount and national importance, it is essential that the
proceedings should be communicated to the public to aware them
of what is going on in the parliament.
o Right to Exclude Strangers:
 The members of the house have the power and right to exclude
strangers who are not members of the house from the proceedings.
This right is very essential for securing free and fair discussion in
the house.
What Did the Vice President Hold?
 According to the Vice President under the Article 105 of the
Constitution, the Members of Parliament enjoy certain privileges so that
they can perform their parliamentary duties without any hindrance.
o One of the privileges is that a Member of Parliament cannot be
arrested in a civil case, 40 days before the commencement of the
Parliamentary session or Committee meeting, and 40 days
thereafter. This privilege is already incorporated under Section 135A
of the Civil Procedure Code, 1908.
 o However, in criminal matters, Members of Parliament are not on
a different footing than a common citizen. It means that a Member
of Parliament does not enjoy any immunity from being arrested in a
criminal case, during the session, or otherwise.
What is the View of Supreme Court?
 The Supreme Court in the State of Kerala Vs. K. Ajith and Others
(2021), observed, that “privileges and immunities are not gateways
to claim exemptions from the general law of the land, particularly as in
this case, the criminal law which governs the action of every citizen.”
 In July 2021, the Supreme Court rejected Kerala government’s plea
to withdraw criminal cases against its MLAs who were charged in
the assembly.
o The Supreme court stated that Parliamentary Privileges
are Not Gateways of Immunity and the legislators who
indulge in vandalism and general mayhem cannot claim
parliamentary privilege and immunity from criminal
prosecution.
Way Forward
 The Parliamentary privileges are conferred on the members for the
smooth functioning of the parliament. But these rights should always
be in conformity with the fundamental rights because they are our
representatives and work for our welfare.
o If the privileges are not in accordance with the fundamental
rights, then the very essence of democracy for the protection
of the rights of the citizen will be lost.
 It is the duty of the parliament not to violate any other rights which are
guaranteed by the constitution. The members should also use their
privileges wisely and not misuse them.
 Article 122: The validity of any proceedings in Parliament shall not be
called in question in court on the ground of any alleged irregularity of
procedure.

How are the parliamentary privileges classified?

Parliamentary privileges are intended to protect the independence and integrity of
the legislative process and to allow lawmakers to speak and act freely without fear
of reprisal or legal consequences.

Collective Privileges

 The ability to publish reports, debates, and proceedings, as well as the ability
to prevent others from doing so.
 It can publish truthful reports of Parliamentary proceedings without the
House's authorization under the freedom of the press.
 However, in the case of a House meeting held in secret, this right of the
press does not apply
 Keep strangers out of the gathering and organise covert sessions to address
vital issues.
 Make rules to govern its own procedure and commercial activity, as well as
to adjudicate on such issues.
 Right to immediate notification of a member's arrest, custody, conviction,
imprisonment, and release
 Initiate inquiries and compel a person's attendance
 The courts are not allowed to investigate a House's or its committees'
proceedings
 Without the consent of the Presiding officer, no one (whether a member or
an outsider) can be arrested, and no legal process (civil or criminal) can be
served within the House's boundaries.

Individual Privileges

 During the session of legislature, from 40 days before the beginning to 40

days after the finish, no member may be arrested.
 This privilege is only granted in civil matters; it is not granted in criminal or
preventive detention situations
 Members have the right to free expression.
 No member of Parliament or its committees is accountable in any court for
anything said or voted in Parliament or its committees.
 This independence is limited by the Constitution's provisions as well as the
norms and standing orders that govern Parliament's functioning.
 They have the right to decline to give evidence and testify in court.
 Individual Privileges Collective Privileges
 Members cannot be arrested during  Right to publish its reports,
the session of Parliament 40 days debates, and proceedings.
before the beginning and 40 days after  Right to exclude
the end of a session. strangers from its
 Members have freedom of speech in proceedings
Parliament, and no member is liable to  Right to make rules to
any proceedings in any court regulate its own procedure
 They are exempted from jury  Right to punish members as
service when Parliament is in session. well as outsiders for breach of
its privileges
 The courts
prohibited inquiring into the
proceedings of a House.
 No person can be
arrested without the
permission of the presiding
officer.

What is the significance of Privileges in the Indian Parliament?

 Parliamentary privileges are an important aspect of the legislative process, as

they help to ensure the independence and integrity of the legislative body.
These privileges are intended to protect the ability of lawmakers to speak
and act freely.
 By providing immunity from arrest and legal process, parliamentary
privileges allow members of parliament to carry out their duties and
responsibilities without fear of intimidation or interference.
 In addition, parliamentary privileges such as the privilege of confidentiality
and the privilege of access allow members of parliament to obtain and share
information that may be crucial to their decision-making processes.
 Overall, parliamentary privileges are an important part of the checks and
balances that help to safeguard the independence and integrity of
democratic institutions and ensure that they can function effectively.
What are the challenges and issues pertaining to Parliamentary Privileges?

There are several challenges associated with parliamentary privileges in India.

Some of these challenges include

 Scope of privileges: One challenge is determining the scope and limits of

parliamentary privileges. While these privileges are intended to protect the
independence and integrity of the legislative process, they can also shield
lawmakers from accountability and scrutiny.
 Conflict with constitutional principles: Parliamentary privileges may
sometimes conflict with other constitutional principles, such as equality
before the law. For example, the privilege of immunity from arrest and legal
process may be seen as giving members of parliament special privileges that
are not available to other citizens.
 Misuse of privileges: There have been instances where parliamentary
privileges have been misused by lawmakers in India. For example, some
lawmakers have used their freedom of speech privilege to make
inflammatory or offensive comments or false or baseless allegations.
 Lack of transparency: The process for claiming and enforcing
parliamentary privileges in India can be opaque and lacks transparency. This
can make it difficult to hold lawmakers accountable for their actions and
undermine public trust in the legislative process.
 Inadequate oversight: There is a lack of adequate oversight and
mechanisms for enforcing parliamentary privileges in India. This can make
it difficult to hold lawmakers accountable for abuses of these privileges and
can lead to a lack of confidence in the legislative process.

What is a Breach of Parliamentary Privilege, and when does it occur?

A breach of privilege in the Indian Parliament refers to a violation of the rights and
immunities of the Parliament or its members.

 Breach of privilege can include impeding the work of parliament,

obstructing a member from carrying out their duties, or disclosing
confidential information discussed in parliament without authorization.
 Breaches of privilege are considered a serious offense and can result in
disciplinary action being taken against the offending member or members.
When any of rights and immunities such as freedom from arrest or freedom of
speech is disregarded or attacked, the offence is called a breach of privilege and
is punishable under the law of Parliament.

What are some of the important judgments related to parliamentary

privileges?

 No Parliamentary immunity for vandalism: The Supreme Court recently

observed that lawmakers cannot indulge in criminal acts on the Parliament
or Assembly floors and then take cover behind the right to free speech.
 K Anandan Nambiar case 1951: The Supreme Court of India held that a
Member of Parliament could claim no special status higher than that of an
ordinary citizen and is as much liable to be arrested, detained, or questioned
even during the session.
 State of Kerala Vs. K. Ajith and Others 2021: The Supreme Court has
observed that “privileges and immunities are not gateways to claim
exemptions from the general law of the land, particularly as in this case, the
criminal law which governs the action of every citizen.”

History of Parliamentary Privileges

The origin of parliamentary privileges in India dates back to the Charter Act of
1833. In 1833 a fourth member was added to the Governor generals Legislative
Council. The origin of the Legislative Council led to the foundation of a full-
fledged body entrusted with the task of law-making. The Government of India Act
1935 provided the freedom of speech to the members of the Legislature.
Parliamentary privileges, today, are enumerated in the constitution of India and
certain statutes and rules of procedures of the house specify the same. Some
privileges are also based on the precedents of the House of Commons.

Under the constitution of India, Articles 105 and 122 deal with the parliamentary
privileges for the members of the Parliament and articles 194 and 12 deal with the
privileges of the members of the Legislative Assembly. Further, the constitution of
India states that parliamentary privileges are subject to the provisions of the
constitution and any rules and standing orders regulating the procedure of
parliament.

Pandit M.S.M. Sharma v/s Shri Sri Krishna Sinha

30th May, 1957: Maheshwar Prasad Narayan Sinha who is a member of Bihar
Legislative Assembly alleged the Chief Minister of being partial in the selection
process of his Ministers, transfers of public servants and involvement and in
corrupt administrative practices. A reference was made in his speech to the case of
a District Judge who was only ‘transferred' contrary to the advice of the Chief
Justice of Patna High Court who recommended his discharge, and this was solely
due to the influence of Mahesh Prasad Sinha. Mr. Maheshwar also contended that
Mr. Mahesh's appointment as the Chairman of Bihar State Khadi Board was for
th.e only purpose of letting him stay in Patna where his residential accommodation
is situated.

Issues

Whether the Constitution of India, under Article 194(3), empowers a State

Legislative Assembly to restrict any publication of a proceeding that has been
witnessed by its members or to prohibit the publication of the parts that has been
directed to be expunged?

Whether the said privilege under Article 194(3) have an upper hand over the
Article 19(1)(a) which grants a Fundamental Right of ‘free speech and expression'
to every citizen of India?

Judgment

The court of law held that in accordance with Article 194(3) of the Indian
Constitution, the state legislative assembly of Bihar does have the same
immunities, privileges and power as the British House of Commons. It was said
that since Bihar legislative assembly did not have passed any law concerning the
power, privileges, and immunities of the legislative assembly and hence legislative
assembly of Bihar will enjoy similar power privileges, privileges, and immunities
as that of the British House of Commons. In the British House of Commons, there
is a framed order that no member shall give a copy or publish any kind of stuff that
has happened during the preceding of the House i.e. no publication of the statement
must be made that has taken place in the House. Therefore while dealing with the
issue of publication regarding the proceeding of parliament or the legislative
assembly the law and order of the British House of Commons should be taken into
the consideration.

The petitioner said that Article 194(3) is curtailing his Fundamental Rights under
Article 19(1) (a) the court has interpreted this question of has concluded that the
legislative privilege under Article 194(3) does not abridge the Fundamental Rights
guaranteed by the Indian Constitution under Article 19(1) (a) and explanation
regarding the same was given. The court of law said that in (1) it is being
mentioned that “subject to the provisions of the constitution” whereas in clauses
(2) to (4) it has not been stated as subject to. Therefore it can be assumed that
Constitutional makers did not intend that that clause should be subject to the
provisions of the Indian constitution and hence Article 194(3) does not breach the
Fundamental Rights which are guaranteed by the Indian Constitution. Further, the
court of law stated that if any provision of the Indian Constitution takes away or
abridges the Fundamental Right then in that case it is a violation of Article 13 and
the provision that violates the Fundamental Right must be void. But, since Article
194(3) is perfectly valid it can be inferred that it does not violate Article 13 of the
Indian Constitution.

However in this case the dissenting opinion was given by Justice Subbarao he
quotes the case of Gunupati Keshavram Reddy v. Nafisul Hasan and said that
Article 194(3) is subjected to Part III i.e. Articles 12 to 35 which deals with
Fundamental Rights.

Tej Kiran Jain vs Sanjiva Reddy

Facts: Few MP’s and MLA’s made the derogatory remark against Shankaracharya
& filed

Issues:

Whether such marks or defamatory?

Whether they can protected under Article 194(2) under Article 195(2)?

Held: It was held that they are protected by Parliamentary privileges because
“anything” was interpreted as “everything”.
Keshav Singh vs. Speaker, Legislative Assembly U. P. (1965),

Facts: Keshav Singh and his 2 companions were accused of violating the dignity
and privileges of Congress MLA, Narsing Narin Pandey. They printed and
distributed defamatory pamphlets against him in areas nearby Lucknow Legislative
Assembly. He was arrested on a warrant issued by the speaker and produced before
the assembly. A writ of Habeas Corpus was filed by Keshav Singh after he was
sent to the district jail for 7 days.

Keshav Singh was held liable for contempt of court and breach of privilege Even
when he was granted bail the house issued summon against him.

Issue:

Whether judiciary has jurisdiction power to decide over breach of privilege?

Whether the act of legislative assembly amounted to contempt of court and

similarly act of judges to decide the case amounted to contempt of House?

What is the position of parliamentary privileges with respect to fundamental

rights?

Judgement:

In this case, Allahabad High Court has dismissed the petition and directed that
there was no error on the part of the assembly while inflicting imprisonment terms
on the petitioner; therefore, he will serve out the remaining days of imprisonment.

Amarinder Singh vs. Special Committee, Punjab Vidhan Sabha (2011),

Facts: Captain Amarinder Singh was expelled from the remaining term of the 13th
Vidhan Sabha for ‘criminal misconduct, corruption, conspiracy to cause wrongful
loss, and abuse of public office’ committed during his tenure as Chief Minister of
Punjab in the 12th Vidhan Sabha. This criminal misconduct included unduly
favouring one private party by exempting his land from land acquisition.

Issues:
In light of the facts of this case and the contentions outlined above, the following
questions arise for consideration:

1. Whether the alleged misconduct on part of the appellant and the

petitioners warranted the exercise of legislative privileges under
Article 194(3) of the Constitution?

2. Whether it was proper for the Punjab Vidhan Sabha to take up, as a
matter of breach of privilege, an incident that occurred during its
previous term?

3. Whether the impugned acts of the Punjab Vidhan Sabha violated the
norms that should be respected in relation to sub-judice matters?

Judgement: The Supreme Court ruling in favour of the appellant has held that for
any misconduct committed by the appellant, a proper mechanism mentioned under
the Code of Criminal Procedure, 1973, should have been followed. It is beyond the
power of the House to expel a member on the ground of a breach of privilege,
which is non-existent. In this case, the act of exemption of the land has in no way
obstructed the sessions or threatened the integrity of the House. The exercise of the
legislative privilege to expel a member by passing a resolution was constitutionally
invalid; therefore, an order was made to restore the membership of the appellant in
the House. The court stayed the resolution passed to that effect.

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184

FACTS –

A criminal investigation against 10 Lok Sabha (House of People) MPs and one
Rajya Sabha (Council of State) MP who accepted money directly or through a
broker in exchange for raising a point in Parliament was broadcast on a private
channel.The Presiding Officer of each House of Parliament then conducted
inquiries against the suspected members after this gained a lot of media attention.
A motion for expulsion from both Houses of Parliament was approved based on
the inquiry committee’s report.

ISSUES –

The petitioner claimed that because the Indian Parliament lacks the ability to self-
compose, it does not inherit the right to expel.
Whether the Parliament has the right to reject under Article 105?

Whether a judicial body can review the expulsion?

JUDGEMENT

The Honourable court pointed out that while Articles 101 and 102 do discuss
eligibility requirements and maintaining membership in the House of
Representatives, they cannot be interpreted in the same way as Article 105(3). As a
result, Articles 101 and 102 are not all-inclusive.

Articles 83(2) and 106 do not grant constitutional rights in the strictest sense and
do not fall under the category of fundamental rights, hence they were not violated
as a result of expulsion.

Voting rights are not basic or protected by the constitution; rather, they are
statutory rights. Therefore, the power of expulsion is not contrary to democratic
principles.

“On scrutinizing the Inquiry reports, we find that there is no violation of any of the
fundamental rights in general, and Articles 14, 20, or 21 in particular,” the CJI
Y.K. Sabharwal, K.G. Balakrishnan, and D.K. Jain ruled. The procedure used by
the two Houses of Parliament cannot be seen to be subject to any illegality,
irrationality, unconstitutionality, violation of the principles of natural justice, or
perversity given that each petitioner was given a proper opportunity to explain and
defend themselves. The claim that the petitioners did not receive a fair deal cannot
be made. However, Justice R. V. Raveendran disagreed, arguing that neither the
inherent nor the Article 105(3)-related expulsion power of the Parliament exists.
Only if Articles 102 or 101 are properly changed, or if a bill is passed pursuant to
Article 102(1)(e), would the House have the authority to eject a member it finds to
be unworthy or unfit to continue serving as a member. He claimed that the
expulsion powers used by the Parliament were illegal because they violated
Articles 101 to 103 of the Constitution.

SITA SOREN V UOI

Sita Soren, a Jharkhand Mukti Morcha (JMM) member, was accused of accepting a
bribe to vote for a particular candidate in the Rajya Sabha Elections of 2012.
Subsequently, the Central Bureau of Investigation (CBI) issued an official charge
sheet against Sita Soren for allegedly receiving a bribe in exchange for a vote. A
lawsuit was filed in the Jharkhand High Court. In 2014, the Jharkhand High Court
dismissed the plea filed by Sita Soren seeking to quash the criminal proceedings
initiated against her, claiming that she enjoyed immunity under Article 194(2) of
the Constitution. The case has subsequently been appealed before the Supreme
Court.
ISSUES RAISED:
The legal issue in this case is whether the immunity provided under Article
105(2)/194(2) of the Indian Constitution extends to cases involving allegations of
bribery for making a speech or voting in the Parliament?
JUDGEMENT:
As of October 5th, 2023, the sеvеn-judgе bench, led by Chief Justice D. Y.
Chandrachud, has rеsеrvеd judgment on the correctness of the Supreme Court’s
decision in the case of Narasimha Rao v. State (1998). The decision will have
significant implications for the scope of a legislator’s immunity in cases involving
bribery for a speech or vote in Parliament or a legislative assembly. In the
Narasimha Rao case, a fivе-judgе bench, in a 3:2 majority, held that legislators are
immune to criminal prosecution for any speech or vote.
The arguments presented by various senior advocates and intеrvеnеrs during the
proceedings reflect a range of perspectives. While some argue that the “cloak of
immunity” should not extend to those who interfere with the legislative process,
others contеnd that the majority’s “nеxus test” for immunity may grant protection
for a wide array of crimes.
Intеrvеnеrs emphasize that privileges under Articles 105 and 194 were not meant
to place parliamentarians on a higher pedestal and support the minority opinion
in Narasimha Rao, asserting that there should be no place for immunity for bribes
in a healthy democracy.
Based on the practiced arguments, it appears that there is a significant divergence
of views regarding the scope and applicability of legislative immunity in cases of
bribery. The court’s judgment, when dеlivеrеd, will have far-reaching implications
for the legal framework surrounding legislator privileges and criminal prosecution.
The court heard that parliamentary privileges do not exempt members from the
obligation to the society which applied to other citizens privileges of Parliament
do not place a member of Parliament on footing different from that of an
ordinary citizen in the matter of application of the laws of the land unless there
are good and sufficient reasons to do so.