This article has been written by J.AKSHAYA from The Tamil Nadu Dr Ambedkar Law University, School of Excellence in Law, Chennai

Table of Contents

INTRODUCTION:

The article 105 of the Indian constitution deals with the parliamentary privileges. They grant privileges and advantages to the members of the parliament to carry their functions efficiently without any conflicts. The features of parliament privileges are borrowed from the British constitution. These privileges are deeply rooted in the nation democratic framework provides a unique set of rights to each member of the Lok Sabha and Rajya Sabha. These privileges are considered as special provisions but also have overriding effects. In this Article we will know more about the privileges of Indian constitution and what are the rights and powers of each members of the parliament enjoys.

MEANING OF PARLIAMENTARY PRIVILDGES:

Parliamentary privileges are special rights, immunities and exemptions enjoyed by the both the 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 the 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 the parliament or any of its committees. These include the attorney general of India and Union ministers. It must be clarified that the parliamentary privileges do not extend to the president who is also an integral part of the parliament.

HISTORICAL ORIGIN:

The origin of Parliamentary privileges in India can be traced as far back as 1833 when a fourth member was added to the governor-general’s council following the Charter Act of 1833. A new type of legislative machinery came into existence. This laid the foundation of an institution that ultimately grew into a full-fledged law-making body by process of evolution.
The official aversion to the legislature’s privileges was diluted after the indirect election to the legislature was provided by the Indian Council’s Act, 1909.
The Government of India Act, 1935, provided that there should be freedom of speech in the legislature.
Today, some of the privileges of Parliament, and its members and committees, are specified in the Constitution, and there are certain statutes and the rules of procedure of the House; others continue to be based on the precedents of the House of Commons.
The main articles of India’s Constitution dealing with the privileges of Parliament are 105 and 122, and the corresponding articles for the states are 194 and 212. Article 105 (1) of India’s Constitution provides that, subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament, there would be freedom of speech in the Parliament.

NEED FOR PARLIAMENTARY PRIVILEGES:

The primary purpose of the parliamentary privileges is to safe guard and facilitates the smooth operation of the legislative process. They serve several key functions:

Freedom of Speech:

Parliamentary privileges grant law makers the freedom to express their opinions and ideas without fear of legal repercussions. This ensures open and honest debates with the legislature, allowing for the thorough examination of issues.

Protection of Integrity:

These privileges protect parliamentarians from external interference, such as civil arrests, while they perform their duties. This shielding enables them to carry out their responsibilities without hindrance.

Immunity from Legal Action:

Parliamentary privileges shield members from legal action for statements made during parliamentary proceedings. This protection encourages candid discussions and prevents legal harassment based on legislative speech.

Transparency:

By allowing the publication of parliamentary proceedings , privileges ensure that the public remains informed about the debates, decisions, and actions of their elected representatives.

TYPES OF PARLIAMENTARY PRIVILEGES:

There are two categories of parliament privileges in India, the specified and enumerated, and the recognized but unremunerated.

The first category includes:

Freedom of speech in each house of the parliament.
Immunity from proceedings in any courts regarding anything said or voted given by a member in parliament or any committee thereof.
Immunity from liability regarding the publication by or under the authority of either house of the parliament, of any report, paper, votes or proceeding of either house.

In the second category, fall all those privileges which were enjoyed by the house of commons of the parliament of the United Kingdom, and its members and committees, ant the commencement of the constitution of India, would continue to be in force unless they are modified and defined by parliament by law.

Parliamentary privileges can be classified into two broad categories;

Those that are enjoyed by both the house of parliament collectively, and
Those that are enjoyed by the members individually.

Collective privileges:

The privileges belonging to each house of the parliament collectively are:

It has the right to publish its reports, debates and proceedings and also the right to prohibit others from publishing the same. The 44^th Amendment Act of 1978 restored the freedom of the press to publish the reports of parliamentary proceedings without prior permission of the house. But this is not applicable in the case of a secret sitting of the house.
It can exclude strangers from its proceedings and hold secret sittings to discuss some important some important matters.
It can make rules to regulate its own procedure and the conduct of its business and to adjudicate upon such matters.
It can punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion in case of members).
It has the right to receive immediate information of the arrest, detention, conviction, imprisonment and release of the member.
It can institute inquiries and order the attendance of the witnesses and send for relevant papers and records.
The courts are prohibited to inquire into the proceedings of a house or its committees.
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.

Individual Privileges

The privileges belonging to the members individually are:

They cannot be arrested during the session of the parliament and 40 days before the beginning and 40 days after the end of the session. This privilege is available only in civil cases and not in criminal cases and preventive detention cases.
They have freedom of speech in parliament. No member is liable to any proceedings in a court for anything said or any vote given by him in parliament or its committees. This freedom is subject to the provisions of the constitution and to the rules and standing orders regulating the procedure of parliament.
They are exempted from jury service. They can refuse to give evidence and appear as a witness in a case pending in a court when parliament is in session.

BREACH OF PRIVILEGE AND CONTEMPT OF HOUSE:

“When any individual or authority disregards or attacks any of the privileges, rights and immunities, either of the member individually or of the house in its collective capacity, the offence is termed as breach of privilege and is punishable by the house”.

Any act or omission which obstructs a house of parliament, its member or its officer in the performance of their functions or which has a tendency, directly or indirectly to produce results against the dignity, authority and honour of the house is treated as contempt of the house.

Though two phrases,’ breach of privilege’ and ‘contempt of the house’ are used interchangeably, they have different implications. Normally a breach of privilege may amount to contempt of house. Likewise contempt of the house may include a breach of privilege also. There may be contempt of the house without specifically committing a breach of privilege. Similarly actions which are not breaches of any specific privilege but are offences against the dignity and authority of the house amount to contempt of the house. For example, disobedience to a legitimate order of the house is not a breach of privilege, but can be published as contempt of the house.

SOURCES OF PRIVILEGES:

There are mainly 5 sources namely:

Constitutional provisions.
Various laws made by parliament
Rules of both the houses.
Parliamentary conventions and
Judicial interpretations.

Main Facts:

The provisions related to the parliamentary privileges of the parliament (members and committees) can be amended using the simple majority of the parliament.
President is not entitled to the parliamentary privileges.
Without taking the oath before the Indian President, the privileges and immunities are not granted to the member of the parliament.
The Lok Sabha speaker is the guardian of the Lok Sabha members’ privileges and the committees of this house of the parliament.
The privilege of the deputy speaker of Lok Sabha:
- He automatically is granted the seat of the chairman of the parliamentary committee he is a member of.
There is a motion named ‘Motion ‘used to censure a minister for the breach of the parliamentary privilege.
Adjournment motion and token cut motion can’t be used to raise the question of privilege.
Lok Sabha has the exclusive privilege to vote on the demand for grants.
The parliament has the judicial power to punish the members of the houses or the outsider for any breach of privilege.
There is a committee called ‘Committee of Privileges’ which is of semi-judicial nature. It is responsible for examining the privileges’ breach. There are 15 members in the committee of privileges for Lok Sabha while there are 10 members for the same committee in Rajya Sabha.
The persons who are allowed to speak in the proceedings of either house of the parliament are also entitled to the privileges of the Parliament. Example – Attorney General of India and Union Ministers.

IMPORTANT CASE LAWS:

In the PV Narasimha Rao v/s State (1998):

The Supreme Court granted Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) immunity from prosecution for accepting bribes in exchange for speeches or votes within Parliament and state legislatures.

The ruling, based on Article 105(2) and Article 194(2) of the Indian Constitution, aimed to protect legislators’ freedom of expression within the legislature.
However, in September 2023, the Supreme Court decided to re-evaluate this immunity, citing its significance in shaping the morality of the polity and the need to reconsider legislators’ immunity against bribery charges.
This development reflects evolving interpretations of parliamentary privileges and their impact on Indian politics.

Free Speech vs. Responsibility

Freedom of speech within Parliament is upheld, subject to the provisions of the Constitution, as well as the rules and standing orders governing parliamentary procedures, as stipulated in Article 105(1) of the Indian Constitution.
Freedom of Speech, one of the bedrock privileges enshrined in Article 105(1) of the Indian Constitution, is the freedom of speech enjoyed by Parliamentarians.
Freedom from Arrest, Parliamentarians is shielded from civil arrest 40 days before and after the adjournment of the house, as well as during the sessions. This protection ensures that members can perform their legislative duties without fear of interference.
Article 105(2) grants immunity to those publishing reports or discussions of the house under the authority of a member. This transparency is crucial for keeping the public informed about parliamentary proceedings.

Gunupati Reddy v. Nafisul Hasan

The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home Minister who was arrested from his residence in Bombay on the ground of contempt of the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article 22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article 22(2). He was not presented before the magistrate within 24hrs of his arrest or detention. Not presenting him before the magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha

The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna. He published a report on the proceedings of the Bihar Legislative Assembly and the reports were said to be removed by the speaker.

The editor was presented before the Legislative Assembly to give reasons for the breach of privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal, the editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the Court denied all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a special provision. If at any time both of these articles come under any conflict the latter will prevail over the former. The general provision cannot overrule the effect of the special provision.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of Harmonious Construction (every statute should be read as a whole and interpretations consistent of all the provisions of the statute should be adopted when in conflict of any statute or any part of the statute) should be applied.

CONCLUSION:

These are the important provisions made in the constitution for the members of the parliament for the smooth functioning of the functions. There are many privileges and rights for the members and there is also contempt of privileges if they override the rules and so they are expelled from being a member of the parliament. So this article enshrines in imparting more knowledge about the immunities and privileges of the Parliament as covered under Article 105 of the Indian constitution.