PRIVILEGES AND IMMUNITIES

OF THE LEGISLATURE

It is not who is right, but what is right, that is of importance

Learn what is true in order to do what is right

-Thomas Huxley
105.Powers, privileges, etc., of the Houses of Parliament 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 Parliament, there shall be freedom of speech in
Parliament.
(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
122. Courts not to inquire into proceedings of
Parliament.- (1) The validity of any proceedings in
Parliament shall not be called in question on the
ground of any alleged irregularity of procedure.
(2) 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 May’s “Parliamentary Practices” Parliamentary
privilege is defined as “the sum of the peculiar rights
enjoyed by each House collectively and by members
of each House individually, without which they could
not have discharged their functions, and which
exceed those possessed by other bodies or
individuals”. (Right – Privilege – Immunity)
 Rutledge, in his "Procedure of the House of Commons"
[Volume I, page 46], defined privileges as "the sum of the
fundamental rights of the House and of its individual
members as against the prerogatives of the Crown, the
authority of the courts of law, and the special rights of the
House of Lords".
 The origin of parliamentary privileges is
inextricably(impossible to seperate) intertwined with the
specific history of the institution of Parliament in
England, and more specifically with the battle between
Parliament and the English Monarch for political
control in the 17th century.
 Parliament in the United Kingdom emerged in the Thirteenth Century.
 By 14th century, Parliament had begun to exercise a small measure of
judicial power. It took on the role of a court in relation to treason and
related matters. In 1376, Parliament, specifically the Commons, had
taken upon itself the power of impeachment of the King's servants.
 Thus, the Lords could hear appeals of treason and Bills of Attainder
where the accuser was the King.
 The long struggle of the British subjects to bring about a parliamentary
democracy involved royal concessions, people's resistance, claims
against Crown prerogatives, execution of Monarchs and restoration of
Parliament, struggles, advances and retreats, and it is through these
turbulent times that the House of Commons emerged as a representative
form of government.
The origin of some of the Parliamentary privileges preceded Parliament
itself and was part of the King's peace, common to all his subjects, but in
special measure shared by his servants. The privilege of freedom of speech
eventually came to be statutorily recognized by Article 9 of the Bill of Rights
Act, 1688. (not important this slide)
Freedom of Speech - The first claim in the Speaker's petition is for
freedom of speech in debate.
FREEDOM FROM ARREST - The second of the Speaker's customary
petitions on behalf of the Commons at the beginning of a Parliament is
for freedom from arrest.
FREEDOM OF ACCESS - The third of the Speaker's petitions is for
freedom of access to Her Majesty whenever occasion shall require.
FAVOURABLE CONSTRUCTION - The final petition which the speaker
makes is that the most favourable construction should be placed upon all
the House's proceedings......
PRIVILEGE WITH RESPECT TO THE CONSTITUTION OF THE
HOUSE - It is a privilege of the House of Commons to provide for its own
proper constitution as established by law.
The origins of this privilege are to be found in the sixteenth century.
India
 It is a fact of English history that the Parliament
was discharging judicial functions in its early
career. It is a fact of both historical and
constitutional history in England that the House of
Lords continued, till recently, to be the highest
Court of law in that country. Now separate Apex
Court is there
 It is obvious that these historical facts cannot be
introduced in India by any legal fiction. Law can
introduce fictions as to legal rights and obligations
and as to the retrospective operation of provisions
made in that behalf, but legal fiction can hardly
introduce historical facts from one country to
another.
 Take the privilege of freedom of access which is exercised by the House of
Commons as a body and through its Speaker "to have at all times the right
to petition, counsel, or remonstrate with their Sovereign through their
chosen representative and have a favourable construction placed on his
words was justly regarded by the Commons as fundamental privilege. It is
hardly necessary to point out that the House here cannot claim this
privilege.
 Similarly, the privilege to pass acts of attainder and impeachments cannot
be claimed by the Parliament in India. The House of Commons also claims
the privilege in regard to its own Constitution. This privilege is expressed in
three ways, first by the order of new writs to fill vacancies that arise in the
Commons in the course of a Parliament; secondly, by the trial of
controverted elections; and thirdly, by determining the qualifications of its
members in cases of doubt . This privilege again, admittedly, cannot be
claimed by the Houses in India. Therefore, it would not be correct to say
that all powers and privileges which were possessed by the House of
Commons at the relevant time can be claimed by the Parliament in India
 The period 1915-1950 marks a definite advance in the history of the
development of parliamentary privilege in India.
 By the Government of India Act, 1915, the entire position of
Parliamentary privilege that obtained before that time was
consolidated.
 The Government of India Act, 1919 brought about material changes
in the Government of India Act, 1915. The legislature at that time
ceased to be part of the Executive.
 Report dated 3rd December, 1924 of the Reforms Inquiry
Committee under the chairmanship of Sir Alexander Muddiman (the
Home Member), which included as members Sir Tej Bahadur Sapru
and Mr. Jinnah, which had examined the issue of powers of the
Indian Legislature and gave vent to the hope and aspiration of
bringing legislatures in India "at par with the House of Commons"
and that "eventually no doubt similar provision will be made in the
Constitution of British India".
 On the basis of the Report, the Indian Legislature passed the
Legislative Members Exemption Act, 1925 (Act XXIII of 1925)
which granted two new parliamentary privileges; viz. the
privilege of exemption of the legislator from jury service and the
privilege of freedom from arrest. Theses new privileges were
reflected in the Code of Criminal Procedure, 1898 by
incorporation in Section 323 and insertion of Section 135-A
respectively.
 Government of India Act, 1919 witnessed a number of instances
wherein the privileges of a legislative body were asserted.
 the Government of India Act, 1935 dealt with the subject of
Privileges etc. of members of Federal Legislature and Provincial
Legislatures respectively. SS . 28 and 71.
 The Indian Independence Act 1947, which brought freedom
from alien rule, made India a full-fledged Dominion of the
Commonwealth of Nations. The Act conferred, through
Section 6(2), sovereign legislative power on the Indian
dominion abrogating the Imperial doctrine of Repugnancy.
 The concept of parliamentary privileges in India in its modern
form is grafted from England. The House of Commons
having been accepted by the Constituent Assembly as the
model of the legislature, the privileges of that House were
transplanted into the draft Constitution through Articles 105
and 194. (Art. 85 of the draft Constitution)
 H.V. Kamath suggested that draft Article 85 should truly rely upon
our own precedents, our own traditions and no importation must be
attempted.
 He observed "I venture to state that this is the first instance of its
kind where reference is made in the Constitution of a free country to
certain provisions obtaining in the constitution of another State. I see
no valid reason why this should be done. It may be that the rights and
privileges which we are going to confer upon the Members of
Parliament of free India will be identical with, or more or less similar
to, those enjoyed by the Members of the House of Commons in the
United Kingdom. ………Is it necessary or is it desirable, when we
are drafting our own Constitution that we should lay down explicitly
in an article that the provisions as regards this matter will be like
those of the House of Commons in England?"
 Similar views were expressed in the course of the debate,
amongst others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah,
Prof. Shibban Lal Saxena, Mr. Narizuddin Ahmad, Dr. P.S.
Deshmukh. Prof. K.T. Shah
 Alladi Krishnaswamy Iyer, while replying to the criticism, stated
thus :-
" In the first place, so far as the question of sentiment is concerned,
I might share it to some extent, but it is also necessary to appreciate
it from the practical point of view. It is common knowledge that the
widest privileges are exercised by members of Parliament in
England. If the privileges are confined to the existing privileges of
legislatures in India as at present constituted, the result will be that
a person cannot be punished for contempt of the House
He added
“If you have the time and if you have the leisure to formulate all the
privileges in a compendious form, it will be well and good. I believe
a Committee constituted by the Speaker on the legislative side found
it very difficult to formulate all the privileges, unless they went in
detail into the whole working of parliamentary institutions in
England and the time was not sufficient before the legislature for
that purpose and accordingly the Committee was not able to give
any effective advice to the Speaker in regard to this matter. … We
are having the English language. We are having our Constitution in
the English language side by side with Hindi for the time being.
Why object only to reference to the privileges in England?
 Dr. Ambedkar while dealing with the draft Article 169
(corresponding to present Article 194) reiterated the
justification given by Mr. Alladi earlier, adding that the
cataloguing of all powers and privileges would have
added to the volume of the Constitution and that the
course of adopting the powers and privileges of the
existing legislature under Government of India Act, 1935
was inadvisable as that body had hardly any rights
available.
 The draft Article 169 (corresponding to present Article
194) was adopted after the above-mentioned explanation
and made part of the Constitution.
 Clause (1) makes it clear that the freedom of speech in the
legislature of every State which it prescribes, is subject to the
provisions of the Constitution, and to the rules and standing
orders, regulating the procedure of the legislature.
 While interpreting this clause, it is necessary to emphasize that the
provisions of the Constitution to which freedom of speech has
been conferred on the legislators, are not the general provisions of
the Constitution but only such of them as relate to the
regulation of the procedure of the legislature.
 The rules and standing orders may regulate the procedure of the
legislature and some of the provisions of the Constitution may
also purport to regulate it; these are, for instance, Articles 208
(Rules of Procedure) and 211(Restrictions on discussion in the
legislature). The adjectival clause "regulating the procedure of the
legislature" governs both the preceding clauses relating to "the
provisions of the Constitution" and "the rules and standing
orders".
 Therefore, clause (1) confers on the legislators
specifically the right of freedom of speech subject to the
limitation prescribed by its first part.
 It would thus appear that by making this clause subject
only to the specified provisions of the Constitution, the
Constitution-makers wanted to make it clear that they
thought it necessary to confer on the legislators freedom
of speech separately and, in a sense, independently of
Article 19(1) (a).
 If all that the legislators were entitled to claim was the
freedom of speech and expression enshrined in Article
19(1) (a), it would have been unnecessary to confer the
same right specifically in the manner adopted by Article
194(1); and so, it would be legitimate to conclude that
Article 19(1)(a) is not one of the provisions of the
Constitution which controls the first part of clause (1) of
Article 194 (M.S.M. Sharma case)
 On the provisions of clause (2) of Article 194 - It is plain that
the Constitution-makers attached so much importance to the
necessity of absolute freedom in debates within the legislative
chambers that they thought it necessary to confer complete
immunity on the legislators from any action in any court in
respect of their speeches in the legislative chambers in the
wide terms prescribed by clause (2). Thus, clause (1) confers
freedom of speech on the legislators within the legislative
chamber and clause (2) makes it plain that the freedom is
literally absolute and unfettered.
 The privileges that could be claimed by the House of Commons
on 26-1-1950, when the Indian Constitution came into force can
be claimed also by legislative bodies in India. This is by virtue of
Arts. 105 (3) and 194 (3) of the Indian Constitution.
 The 42nd Amendment 1976, substituted in Art. 105 and Art. 194
New Clause for clause (3). Under the new clause the privileges
shall be such as they were before the 42nd Amendment. This is
replaced by the 44th Amendment 1978, to read that the privileges
shall be such as they were before the 44th Amendment. This is
only a formal amendment and the privileges continue to be what
they were previously.
 The 42nd Amendment provided that each legislative House shall
also have such privileges as may be “evolved” by it in the future.
This suggests that new privileges can be created without Law.
This would be a divergence from the English Constitution. This
has been rectified by the 44th Amendment which omits the
provision as to evolving new privileges by each House.
 In the context of the all important clause (3) of Article 194, The
Constitution-makers must have thought that the legislatures will take
some time to make laws in respect of their powers, privileges and
immunities. During the interval, it was clearly necessary to confer on
them the necessary powers, privileges and immunities. There can be
little doubt that the powers, privileges and immunities which are
contemplated by clause (3), are incidental powers, privileges and
immunities which every legislature must possess in order that it may
be able to function effectively, and that explains the purpose of the
latter part of clause (3).
 Mr. Seervai's argument is that the latter part of Art. 194(3) expressly
provides that all the powers which vested in the House of Commons
at the relevant time, vest in the House. This broad claim, however,
cannot be accepted in its entirety, because there are some powers
which cannot obviously be claimed by the House......... Therefore, it
would not be correct to say that all powers and privileges which were
possessed by the House of Commons at the relevant time can be
claimed by the House.
English Cases
In Stockdale v. Hansard, the question arose whether a person could
successfully bring an action for defamation arising out of the
publication of Parliamentary proceedings when such publication
was authorised by a resolution of the House of Commons. It was held
that court was not bound by a resolution of the House of Commons. It
was decided that there was no privilege of Parliament involved in the
publication of those proceedings and accordingly a decree for damages
was granted to the Plaintiff. This part of the decision, however, has been
overruled statutorily by the Parliament Papers Act of 1810, which
confers absolute privilege on all reports of proceedings published by
order of either House of Parliament.
(The provisions of the Act of 1810, are reproduced in Arts. 105 and
194. But the publication should be by either House of Parliament or
under its authority [Art. 105 (2)]. If a member himself publishes the
statement made by him on the floor of the House, he cannot claim this
immunity.
In Bradlaugh v. Gossett, (1884).
In this case Mr. Bradlaugh was elected to the House of Commons from
the Northampton Constituency. The House of Commons resolved that
Mr. Bradlaugh should not be allowed to sit in the Commons. Mr.
Bradlaugh was accordingly prevented from taking his oath and sitting in
the House. Bradlaugh contended that the resolution of the House of
Commons was repugnant to the Parliamentary Oaths Act which
prescribed the course of proceedings to be followed on the occasion of
the election of a Member of Parliament. It was, however, held by
Stephen, J., that the House of Commons had an exclusive power of
interpreting that statute so far as the regulation of its own
proceedings within its own walls was concerned. Even if the
interpretation turned out to be erroneous, the courts had no power
to interfere with it directly or indirectly. It is, thus, clear that the effect
of this privilege is to make the House of Commons the final judge as to
the regulation of its own internal concerns.
The Standing orders of each House of Parliament prohibit
the publication of its debates.
However, as observed by Chief Justice Cockburn in Wason
v. Walter, 1868 QB 73.
“But practically, each House not only permits but also
sanctions and encourages, the publication of its proceedings
and actually gives every facility to those who report them”.
In that case it was held that no tortious liability for libel is
incurred by a fair and accurate report of the proceedings of
Parliament even though the matter was published without
any Parliamentary sanction.
According to Sir Erskine May ; “The repeated orders made by
the House forbidding the publication of the debates and
proceedings of the House or of any Committee thereof and
comments thereon, or on the conduct of members of the
House, by newspapers, news-letters or otherwise and directing
the punishment of offenders against such rules have long since
fallen into disuse”.
Sir Erskine May cites orders of the House of Commons from
1640 to 1820, in this connection but thereafter there appears to
be no such order.
The privilege seems to have originated in the 17th Century at
a time when the Commons were opposing the Crown and
were very zealous of the privacy of their proceedings lest any
information should reach the King who might visit his
displeasure upon the members concerned.
Parliament has the privilege of punishing for contempt of its
authority. It can execute its decision on matters of privilege by committing
to prison for contempt of the House recalcitrant persons, whether they are
members of Parliament or not.
InSherif of Middlesex, 1840. the Sherif of Middlesex tried to execute the
decree for damages awarded by the court in the case of Stockdale v.
Hansard which involved a question of Parliamentary privilege. He was
detained under a Resolution of the House of Commons on the ground that
he was guilty of a contempt and breach of privileges of that House. In an
application of Habeaus corpus it was held by Lord Denman, C.J., that the
court cannot question the legality of the detention for contempt of the
House. Thus, it is clear that the privilege of the House of Commons
enables it to commit anyone for contempt of the House. No doubt if the
ground of the detention is disclosed, it would be possible for the court to
enquire in a Heabeas corpus petition whether it is a valid ground for
deprivation of liberty. Where no ground is disclosed but the commitment is
merely stated to be for contempt of the House of Commons, i.e., when a
general warrant to imprison for contempt is issued, the court is rendered
helpless in Habeaus corpus proceedings.
The House of Commons claims that it is itself the judge of the
scope of its privilege. Courts, however, have not conceded this
point. In Ashby v. White, 1702, an elector was prevented from
exercising his vote in a Parliamentary election by the Officer
conducting the election. The candidate whom he desired to support
won the election. But the action was brought for the breach of his
right to exercise his franchise. It was contended that the question
was one of Parliamentary privilege and it was, therefore, outside the
competence of the court to determine them. The House of Lords
rejected that contention and held that the privilege of the House was
confined to its internal proceedings only and to matters within the
walls of the House. Damages were awarded for hindering the
exercise of the franchise to which the plaintiff was entitled.
In Paty’s case, 1704, the House of Commons attempted to stop
actions similar to Ashby’s by committing the Plaintiffs to
prison for contempt of the House when they tried to execute
the decree of the court.
A majority of the Judges, held that it is clear from the case of
the Sheriff of Middlesex discussed above that the court would
be disabled only when the House fails to disclose any cause of
commitment other than contempt of the House. Holt, C.J., was
of the view that a writ of Hebeas corpus would go to release
any person committed for contempt by the House of Commons
if the cause stated in the return is insufficient in law.
Sir Erskine May in his “Parliamentary Practice” observed:
(1)It seems to be recognised that for the purpose of adjudicating on
question of privilege, neither House is by itself entitled to claim the
supremacy over the ordinary courts of justice. The supremacy of
Parliament, consisting of the King and the two Houses, is a
legislative supremacy which has nothing to do with the privilege
jurisdiction of either House acting singly.
(2)It is admitted by both Houses that since neither House can itself
add to the law, neither House can by its own declaration create a
new privilege. This implies that privilege is objective and it extent
ascertainable by the courts.
(3)That the control of each House over its internal proceedings is
absolute and cannot be interfered with by the courts.
(4)That a committal for contempt by either House is in practice
within its exclusive jurisdiction, since the facts Constituting the
alleged contempt need not be stated on the warrant of committal.
Indian cases
Gunupati v Nafizul Hussain AIR 1954 S.C. 636.
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) had been violated and
ordered his release. However, 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.
M.S.M. Sharma v. Sri Krishna Sinha , AIR 1959 SC 395
Pandit Sharma, the petitioner in that case was" editor of an English
Daily Newspaper "Searchlight" of Patna. He invited the wrath of the
legislative assembly of Bihar by publishing extracts from
proceedings of the legislative assembly including certain parts which
had been ordered to be expunged by the Speaker. In this context, the
Speaker had referred the matter to the Privileges Committee of the
assembly which in turn issued a show cause notice to him. Pandit
Sharma brought writ petition in this court under Article 32 of the
Constitution of India alleging that the proceedings initiated by the
legislative assembly had violated his fundamental right of speech and
expression under Article 19 (1) (a) as also the fundamental right of
protection of his personal liberty under Article 21. The case was
decided by a Constitution Bench (five Judges)
The writ petition of Pandit Sharma was dismissed on the basis of majority
view, inter alia, holding that the legislatures in India were vested with the
power or privilege of prohibiting the publication of debates or proceedings
that took place in the House, of even a true and faithful report, as indeed
of an inaccurate or garbled version thereof. It was further held that the
powers, privileges and immunities available in terms of Articles 105(3) and
194(3) stood in the same supreme position as the provisions of Part III of
the Constitution and could not be affected by Article 13 and, therefore, the
principle of harmonious construction required to be adopted. The court
concluded that the fundamental right of free speech and expression under
Article 19(1)(a) being general in nature must yield to Article 194(1) and the
latter part, of Article 194(3) which are special provisions. The challenge to
the proceedings under Article 194(3) on the basis of Article 21 was also
repelled on the ground of it being "in accordance with the procedure
established by law" in as much as the rules framed by the legislative
assembly under Article 208 laid down the procedure.
The case of Pandit Sharma did not end there. Subsequently,
the legislative assembly of Bihar came to be prorogued
several times and the committee of privileges was also
reconstituted. This led to a fresh notice being issued to
Pandit Sharma in the wake of which he brought another writ
petition under Article 32 of the Constitution, substantially
raising the same questions and contentions as had been
agitated in the earlier proceedings by him before the court.
This writ petition was dismissed by the Constitution Bench
(eight Judges). The judgment is reported as M.S.M. Sharma
v. Shree Krishna Sinha AIR 1960 SC 1186
Reference by the President of India under Article 143(1) of the Constitution
( Keshav singh’s caseAIR 1965 SC 745). The genesis of the case was
traceable to certain unfortunate developments concerning the legislative
assembly of the State of Uttar Pradesh and the Lucknow Bench of the High
Court at Allahabad. The legislative assembly of Uttar Pradesh had committed
one Keshav Singh, who was not one of its members, to prison for its
contempt. The warrant of committal did not contain the facts constituting the
alleged contempt. Keshav Singh moved a petition, inter alia, under Article
226 of the Constitution through his advocate challenging his committal as
being in breach of his fundamental rights. A Division Bench of the High Court
sitting at Lucknow gave notice to the Government counsel and on the
appointed day proceeded to hear the application for bail. At that stage, the
Government Counsel did not appear. The Division Bench heard the
application and ordered release of Keshav Singh on interim bail pending
decision on his writ petition.
The legislative assembly found that Keshav Singh and his advocate in
moving the High Court and the two Judges of the High Court in
entertaining the petition and granting bail had committed contempt of
the legislative assembly. The assembly passed a resolution that all of
them, including the, two High Court Judges, be produced before it in
custody. The High Court Judges and the advocate in question thereupon
filed writ petitions before the High. Court at Allahabad. A Full Bench of
the High Court admitted the writ petitions and ordered the stay of
execution of the assembly's resolution against them. Subsequently, the
legislative assembly passed a clarificatory resolution modifying its
earlier stand and asking the Judges and the advocate to appear before the
House and offer their explanation. It was against this backdrop that the
President made a reference under Article 143(1) of the Constitution
seeking opinion mainly as to the Constitutional relationship between the
High Court and the State Legislature in matters of the powers and
privileges of the latter.
The Supreme Court held that in India Legislatures cannot issue
general warrants so as to preclude the jurisdiction of the courts. Such
a privilege would be inconsistent with Articles 32 and 226 of the
Constitution which have invested the Supreme Court and the High
Courts respectively with power to protect fundamental rights. As
observed by Gajendragadkar, C.J., “It would indeed be strange that
the Judicature should be authorised to consider the validity of the
Legislative Acts of our Legislatures, but should it be prevented from
scrutinising the validity of the action of the Legislatures trespassing
on the fundamental rights conferred on the citizens”. Articles 32 and
226, which afford remedies for the enforcement of fundamental
rights, cannot be overridden by privileges of the Legislatures.
Neither the petitioner nor the Advocate commits any contempt of the
Legislatures by moving the court for protection of fundamental
rights. Gajendragadkar, C.J., points out : “The rights of the citizens
to move the Judicature and the rights of the advocates to assist in
the process must remain uncontrolled by Article 194 (3)
No proceeding can be taken against a Judge of the High
Court or the Supreme Court for anything done in his
judicial capacity. Under Article 121, no discussion can
take place in Parliament with respect to the conduct of
any judge of the Supreme Court or of a High Court in
the discharge of his duties except upon a motion for
presenting an address to the President praying for the
removal of the Judge. Under Article 211, the Legislature of
a State cannot discuss the conduct of the judges in the
discharge of their duties. Gajendragadkar, C.J., therefore,
observes: “If the judicial conduct of a Judge cannot be
discussed in the House, it is inconceivable that the same
conduct can be legitimately made the subject-matter of
action by the House in exercise of its powers under
Article 194 (3)
P. V. Narsimha Rao v. State (CBI/SPE) AIR 1998 SUPREME
COURT 2120
Majority view (Per S. P. Bharucha, J. (for himself and on behalf of
S. Rajendra Babu, J.), G. N. Ray, agreeing)
It cannot be said that, though the words "in respect of" must
receive a broad meaning, the protection under Art. 105(2) is limited
to Court proceedings that impugne the speech that is given or the
vote that is cast or arise there out or that the object of the protection
would be fully satisfied thereby. The object of the protection is to
enable members to speak their mind in Parliament and vote in the
same way, freed of the fear of being made answerable on that
account in a Court of law.
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha AIR 2007
SC (Supp) 1448
In 2007, 11 Members of Parliament were caught on camera by a
news channel, accepting bribes to ask certain questions in
Parliament and thereby misusing their powers for illegal
gratification and monetary gain. The Parliament of India suspended
these Members who in turn approached the Supreme Court for
relief. The Speaker and the Chairman of the Lower and Upper
House of Parliament respectively, refused to appear before the
Supreme Court.
They asserted that the exercise of privileges fell within the
exclusive jurisdiction of Parliament and that the Court had no
power to entertain the matter even; let alone exercise its power of
Judicial Review. The Supreme Court decided to proceed with the
case in spite of Parliament’s strident stand and the Union of India
therefore defended Parliament’s view in the Supreme Court.
Per T.K. Sabharwal CJI. (For himself and on behalf of K. G.
Balakrishnan, D. K. Jain, JJ.) :- Reiterating the opinion expressed
in earlier case it was held that whenever Parliament, or for that
matter any State legislature, claims any power or privilege in terms
of the provisions contained in Article 105(3), or Article 194(3) as
the case may be, it is the court which has the authority and the
jurisdiction to examine, on grievance being brought before it,
to find out if the particular power or privilege that has been
claimed or asserted by the legislature is one that was
contemplated by the said constitutional provisions or, to put it
simply, if it was such a power or privilege as can be said to have
been vested in the House of Commons of the Parliament of United
Kingdom as on the date of commencement of the Constitution of
India so as to become available to the Indian legislatures.
The Principles relating to Parameter of Judicial Review in
relation to exercise of Parliamentary Provisions are as
follows :-
a. Parliament is a co-ordinate organ and its views do deserve
deference even while its acts are amenable to judicial scrutiny;
b. Constitutional system of government abhors absolutism and
it being the cardinal principle of our Constitution that no one,
howsoever lofty, can claim to be the sole judge of the power given
under the Constitution, mere co-ordinate constitutional status, or
even the status of an exalted constitutional functionaries, does not
disentitle Supreme Court from exercising its jurisdiction of judicial
review of action which part-take the character of judicial or quasi-
judicial decision;
c. The expediency and necessity of exercise of power or
privilege by the legislature are for the determination of the
legislative authority and not for determination by the courts;
d. The judicial review of the manner of exercise of power
of contempt or privilege does not mean the said
jurisdiction is being usurped by the judicature;
e. Having regard to the importance of the functions
discharged by the legislature under the Constitution and
the majesty and grandeur of its task, there would always
be an initial presumption that the powers, privileges
etc. have been regularly and reasonably exercised, not
violating the law or the Constitutional provisions, this
presumption being a rebuttable one;
f. The fact that Parliament is an august body of co-
ordinate constitutional position does not mean that there
can be no judicially manageable standards to review
exercise of its power;
g. While the area of powers, privileges and immunities of the
legislature being exceptional and extraordinary its acts,
particularly relating to exercise thereof, ought not to be tested on
the traditional parameters of judicial review in the same manner
as an ordinary administrative action would be tested, and the
Court would confine itself to the acknowledged parameters of
judicial review and within the judicially discoverable and
manageable standards, there is no foundation to the plea that
a legislative body cannot be attributed jurisdictional error :
h. The Judicature is not prevented from scrutinizing the
validity of the action of the legislature trespassing on the
fundamental rights conferred on the citizens;
i. The broad contention that the exercise of privileges
by legislatures cannot be decided against the
touchstone of fundamental rights or the constitutional
provisions is not correct;
j. If a citizen, whether a non-member or a member of the Legislature,
complains that his fundamental rights under Article 20 or 21 had been
contravened, it is the duty of Supreme Court to examine the merits of
the said contention, especially when the impugned action entails civil
consequences;
k. There is no basis to claim of bar of exclusive cognizance or absolute
immunity to the Parliamentary proceedings in Article 105(3) of the
Constitution;
l. The manner of enforcement of privilege by the legislature can result in
judicial scrutiny, though subject to the restrictions contained in the other
Constitutional provisions, for example Article 122 or 212;
m. Articles 122 (1) and Article 212 (1) displace the broad doctrine of
exclusive cognizance of the legislature in England of exclusive
cognizance of internal proceedings of the House rendering irrelevant the
case law that emanated from courts in that jurisdiction; inasmuch as the
same has no application to the system of governance provided by
Constitution of India;
n. Article 122 (1) and Article 212 (1) prohibit the validity of any
proceedings in legislature from being called in question in a court
merely on the ground of irregularity of procedure;
o. The truth or correctness of the material will not be questioned by the
court nor will it go into the adequacy of the material or substitute its
opinion for that of the legislature;
p. Ordinarily, the legislature, as a body, cannot be accused of having
acted for an extraneous purpose or being actuated by caprice or mala
fide intention, and the court will not lightly presume abuse or misuse,
giving allowance for the fact that the legislature is the best judge of
such matters, but if in a given case, the allegations to such effect are
made, the Court may examine the validity of the said contention, the
onus on the person alleging being extremely heavy.
q. The rules which the legislature has to make for regulating its
procedure and the conduct of its business have to be subject to the
provisions of the Constitution;
r. Mere availability of the Rules of Procedure and Conduct of
Business, as made by the legislature in exercise of enabling
powers under the Constitution, is never a guarantee that they
have been duly followed;
s. The proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are not
protected from judicial scrutiny;
t. Even if some of the material on which the action is taken is
found to be irrelevant, the court would still not interfere so long
as there is some relevant material sustaining the action;
u. An ouster clause attaching finality to a determination does
ordinarily oust the power of the court to review the decision but
not on grounds of lack of jurisdiction or it being a nullity for
some reason such as gross illegality, irrationality, violation of
constitutional mandate, mala fides, non-compliance with rules of
natural justice and perversity.
It is not enough that members should be protected against civil
action and criminal proceedings, the cause of action of which is
their speech or their vote. To enable members to participate
fearlessly in Parliamentary debates, members need the wider
protection of immunity against all civil and criminal proceedings
that bear a nexus to their speech or vote. It is for that reason that a
member is not "liable to any proceedings in any Court in respect
of anything said or any vote given by him". Art. 105(2) does not
say, that a member is not liable for what he has said or how he has
voted.
Therefore the bribe takers MPs who have voted in Parliament
against no-confidence motion are entitled to protection of Art.
105(2) and are not answerable in a Court of law for alleged
conspiracy and agreement. To the bribe giver MPs., the
protection under Art. 105(2) is not available.
Minority view (Per S. C. Agrawal for himself and on behalf
of A. S. Anand, J.)- The protection given under Cl. (2) of
Art. 105 is narrower than that conferred under Art. 9 of the
Bill of Rights in the sense that the immunity conferred by
that clause is personal in nature and is available to the
member in respect of anything said or any vote given by him
in the House or any Committee thereof. The said clause does
not confer an immunity for challenge in the Court on the
speech or vote given by a Member of Parliament. Cl. (2) of
Art. 105 does not prescribe that a speech made or vote
given by a member in Parliament cannot be made the
basis of civil or criminal proceedings at all. The said
clause only gives protection to the member who has
made the speech or has given the vote from liability in
any proceeding in a Court of law.