INTRODUCTION

The Parliament being a supreme legislative authority has a lot of functions and duties to
perform and in order to discharge those high functions and duties effectively and efficiently
without any obstruction or interference, without fear or favour, certain privileges are provided
to the House as well as its members.
The powers given to the House and its members is more wide than those given to the
common people with the intention that the parliament may work effectively without facing
any obstruction or interruption in their powers. Privileges are conferred on the house in order
to vindicate its authority, prestige and power and protect its members. These privileges
become important in order to enable the house to fulfil its constitutional obligations, to
conduct its business and maintain its authority. But these privileges are not provided only to
the members of the house. According to Article 105(4) and Article 88, attorney general and
all those ministers who have the right to speak and take part in the proceedings of the house
or its committees would also be provided with the following privileges.
As to the question of what are parliamentary privileges, Dicey says that, it is 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.
India, in the case of Raja Ram pal v Honble Speaker1 defined the term privilege as a
special right, advantage or benefit conferred on a particular person. It is a peculiar advantage
or favour granted to one person as against another to so certain acts. Inherent in the
definition is the idea that these privileges are conferred to them by the higher authority as
inspired by the privileges of house of the commons. The privileges of House of Commons
have been defined as the sum of the fundamental rights of the house and of its individual
members as against prerogative of the crown, the authority of the ordinary court of law and
the special rights of the house of lord.
Sir Erskin May states- Parliamentary privilege is 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. He widening the concept
of privileges inducing the concept of power and immunities of the members of parliament
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stated the necessity for parliament to perform its function with impeded use of services of its
members.

HISTORY OF PARLIAMENTARY PRIVILEGES IN INDIA

According to Article 105(3) of the constitution before the 42nd Amendment Act,
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 as such as may from time to time be
defined by parliament by law, shall be those of the house of Commons of the parliament of
the United Kingdom and of its members and committees at the commencement of the
constitution.
Thus according to this article, the constitution expressly provided the same privileges to the
parliament as provided to the House of Commons.
There was never a codification as to what privileges would be there and debate had been
there on the question of whether independent India should have their own code of
parliamentary privileges instead of relying upon the uncodified law of British House of
Commons.
The main argument in the favour of uncodification, based on the decision of the Supreme
Court in the case of MSM Sharma v Sri Krishna Sinha 2, is that as long as the privileges are
left uncodified, the latter part of Article 105(3) will operate so as to make the privileges of
House of Commons available, regardless of the limitations put forth in the Part III of the
Constitution. As soon as the legislature would legislate over this matter, the privileges would
be bound by the limitations of the fundamental rights as under Article 13(2).
A lot of debate was initiated on the content of Article 105(3) as to the reference of a different
country in the Constitution of an independent country. The approach of the constitution
makers on this regard was highly criticized as there is one major difference which existed
between India and United Kingdom that needed to be taken into consideration.
Unlike British Parliament, Indian Parliament is not sovereign. In India, the constitution is
supreme and thus any legislative action which is taken by the legislature is bound by the
limitations put forth by the constitution. The British constitution is sovereign and One of the
hallmarks of such sovereignty is the right to make or unmake any which no court or body or
any person can set aside of override. Whereas, the Indian Parliament is a part of Constitution
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and such a legislature should act within the ambit of [power defined by the Constitution. Any
act or action of the Parliament contrary to the constitutional limits will be void.
A.7 In Special Reference No. 13, a bench of seven judges observed: In England, Parliament
is sovereign; and in the words of Dicey, the three distinguishing features of the principle of
Parliamentary sovereignty are that the Parliament has the right to make or unmake any law
whatever, that no person or body is recognised by the law of England is having a right to
override or set aside the legislation of Parliament; and that the right or power of parliament
extends to every part of Queens dominion. On the other hand, the essential characteristic of
federalism is the distribution of limited executive, legislative and judicial authority among
bodies which are coordinate with and independent of each others. the supremacy of the
constitution is fundamental to the existence of a federal state in order to prevent either the
legislature of the federal unit or those of the member states from destroying or impairing that
delicate balance of power which satisfies the particular requirements of states which are
desirous of union, but not prepared to merge their individuality in a unity. This supremacy of
the constitution is protected by the authority of an independent judicial body to act as the
interpreter of a scheme of distribution of powers.
And thus after 44th Amendment Act, Article 105(3) was amended

PRIVILEGES CONFERRED BY THE CONSTITUTION

Article 105 and Article 194 of the Constitution of India deal with the power, privileges and
immunities of parliament and its members and of their state legislatures and its members
respectively. There is no exhaustive enumeration of the privileges; it is the third section of
these articles that referred to the privileges of the House of Commons at the commencement
of the constitution and thus those privileges which the British Parliament enjoyed as on 26
January 1950.
Article 105 states that:
(1) Subject to the provisions of the constitution and 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.

Freedom Of Speech- Article 105(1):

The essence of the Parliamentary democracy is a free, frank and fearless discussion in the
parliament. For a body like Parliament, freedom of speech plays a very important role that
enables the members to take part in the debate without any kind of fear of being penalised for
some offence.
The Rajya Sabha held in its XII report that a parliament member cannot be questioned in any
court or any place outside the parliament for any disclosure he made since it will amount to
interference with the freedom of speech. Subsequently Lok Sabha has also held that it will
amount to contempt of house or breach of privilege if any suit is filed in court for what is
said on the floor of the house.
The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy 4 held that once it is
proved that parliament was sitting and its business was being transacted, anything said during
the course of that business was immune from proceeding in any court.
No action, civil or criminal, will lie against a member for defamation or anything of the like
in respect of anything said in the parliament or its committees. The freedom of speech does
not only extend to speech but also the other acts done in connection with the proceedings of
each House, such as, for notices of motions, questions, reports of the committee, or the
resolutions.
The phrase subject to the provisions of the constitution, refers to the provision related to the
rules of procedure in Part V including Articles 107 and 121.
The freedom of speech provided to the common citizens under Article 19(1) is different from
this article. The fundamental right to speech and expression is not absolute and is subjected to
the reasonable restrictions imposed under Article 19(2). The freedom of speech provided as a
privilege under Article 105 is not subjected to those restrictions. They cannot be held liable
for anything said on the floor.
Article 105(1) protects whatever is said within the house and not outside the house and thus
anything said outside the house will be punishable under the law. The word anything in
Article 105(2) is of widest import and is equivalent to everything. The only limitation is that
the act done should be during the sitting of the parliament and in the course of the business.
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Once this is proved, anything said during the course of business would be immune from the
proceedings of the court. But their actions would not be completely immune. They would be
subjected to the disciplinary actions of the House.
In a much publicised case of P.V. Narsimha Rao v State 5 involving former Prime Minister,
several ministers, Members of Parliament, the court gave a very contentious judgment that
the immunity from courts proceedings extends even to bribes taken by the Members of
Parliament for the purpose of voting in the Parliament. The majority judges interpreted the
expression in respect of in Article 105(2) in widest manner possible and included in it any
act which has any connection or nexus with the speech or vote given in the Parliament. Such
liberal interpretation would include within its ambit acceptance of bribe in order to cast votes.
The bribe givers were not given any protection under this article but on the question of bribe
takers, the court took a very interesting approach. As to those bribe takers who after taking
bribe voted in the parliament against the no-confidence motion were given the protection
under this article but not those bribe- takers who though took the bribe and yet voted for it.
While those bribe givers and takers who did not participate in the voting cannot claim
immunity from the court under Article 105(2).

Right of Publication of Proceedings- Article 105(2):

Article 105(2) expressly states that 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. Thus this protection would not extend to the publication by a private person
without the authority of the house.
In Wason v Walter6, Cockburn, C.J. observed that it was of paramount public and national
importance that parliamentary proceedings should be communicated to public as their deep
interest is involved in knowing the functioning of the House.
The Parliamentary Proceedings Act, 1956 enacts that no person shall be liable to any
proceedings, civil or criminal, in any court in respect of the publication of a substantially true
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report of the proceedings of either House of the Parliament; unless it is proved that the
publication is made with malice. The Act was repealed during 1975 emergency.
The 44th Amendment Act 1978 has incorporated Article 361-A in the Constitution. Article
361-A titled as Protection of publication of proceedings of Parliament and State
Legislatures provided with the same provision as mentioned before under the 1956 act.
However, nothing in this clause would apply to the publication of any secret proceedings of
the Houses.
Clause (2) of the article 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 broadcasting station as it applies in relation to report or matters published in a
newspaper.
Other Privileges:
Article 105(3) declares that the privileges of each House of parliament, its members and
committees shall be such as determined by Parliament from time to time and until Parliament
does so, which it has not been done yet, shall be such as on 20 th June 1979 i.e., on the date of
commencement of Section 15 of 44th Amendment Act 1978.
To each House of Parliament, accordingly, belong the privileges, which are possessed by the
House of Commons in the United Kingdom.
1. Freedom from Arrest
Section 135-A of CPC 1908 provides that 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. Even if a member is arrested
within this period, he shall be released so that he may attend the proceedings.
However, this protection does not extend in cases of criminal charges or contempt of
court or preventive detention. However, according to Rule 261 of Lok Sabha, it is the
duty of the detaining authority to communicate to the House to which he belongs, the
reasons for arrest or detention, the time of arrest, the place where he is detained and
the period for which the member is detained.

In the case of K. Anandan Nambiar v Chief Secretary, Governor of Madras 7, it was

held that the members of Parliament do not enjoy any special status as compared to an
ordinary citizen in respect of valid orders of detention.
2. Right to Exclude Strangers
It is the right of the House to not let strangers or non-members of the House into
certain secret proceedings. Rule 248 of Lok Sabha give the power to the chair of the
House, whenever it thinks fit, to order the withdrawal of stranger from the House and
not permit any stranger in the chamber, lobby or gallery when the House sits in secret
session with the exception of the members of the Council of States and the persons
authorized by the speaker.
3. Right to prohibit publication of proceedings
In the Searchlight case (Pandit MSM Sharma v Sri Krishna Sinha), an editor of a
newspaper published certain those parts of the speech of a member in Bihar
Legislative Assembly which the speaker had otherwise ordered to be expunged from
the proceedings of the Assembly. The editor in a writ petition under Article 32
contended that the House has no power to prevent the publication of any proceeding
to the public even if it is expunged by the chair as it is the right of the public to know.
The court rejected the argument and the Chief Justice Das, who delivered the majority
opinion, observed that the House of Commons at the time of commencement of our
constitution had the power to prohibit the publication of even a true and faithful report
of the debates or proceedings of the House. The court said that the effect of the
expunge is that after the expunge of the speech by the speaker, it is as if that part of
the speech was not even spoken.
4. Right to Regulate internal proceedings
The House has complete power over its internal proceedings. Though the President
and governor in case of states summon the sessions of the House, yet they have no
constitutional power to direct the speaker as to the manner of the conduct of the
House.
Article 122 (and Article 212 in case of state legislatures) expressly provides that the
validity of the proceedings of the House cannot 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
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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.
5. Right to punish for contempt of the House
It is the right as well as privilege of the House to punish its members as well as nonmembers for the contempt of the house or the breach of its privilege. The thing to note
is that the power is not provided only for the present contempt but even past
contempt.
After 1977 elections, a resolution was moved by the winning party Janta Party in the
Lok Sabha that