FREEDOM OF MEMBERS OF

PARLIAMENT AND
LEGISLATION
BY AAKASH SINGH CHAUHAN
A 27
INTRODUCTION

• The privileges are provided to both the houses of parliament to work

effectively and efficiently and to discharge its functions without any kind
of obstruction or interference. The privileges are provided to each house
collectively and to its members independently.
• Under the constitutional law and in the arena of Indian Parliament, the
expression “privilege and immunity” signifies certain special or
exceptional rights of Lok Sabha or Rajya Sabha or its individual members
which are generally accepted as necessary for the exercise of their
constitutional functions.
DEFINITION

• As per Oxford dictionary, the term privilege refers to the “special right, advantage
or immunity to the particular person. It is special benefit or honour”. Hence it can
be inferred that the term privileges referred to the special rights and advantages that
are enjoyed by the members of parliament over the citizen of India. Various authors
throughout the world have interpreted the word privileges according to the norms
and scenario exists in their respective country.
• India in the case of Raja Ram Pal v Hon’ble speaker 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 do certain
acts”
Article 105 Powers, privileges, etc. of the Houses of
Parliament and of the members and committees thereof.-
• Subject to the provisions of this constitution and the rules and standing orders regulating the
procedure of Parliament, there shall be freedom of speech in Parliament.
• 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.
• 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.
• 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.
 Article 194 Powers, privileges, etc., of the House of
Legislatures and of the members and committees
thereof.-
• Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
• No member of the Legislature of a State shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in the Legislature or any committee thereof, and no person
shall be so liable in respect of the publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
• In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and
of the members and the committees of a House of such Legislature, shall be such as may from time
to time be defined by the Legislature 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 26 of the
Constitution (forty-fourth Amendment) Act, 1978.
• 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
the Legislature of a State or any committee thereof as they apply in relation to members of that
Legislature.
Privileges And The British Constitution In Concern

• Unlike British Parliament, Indian Parliament is not sovereign. It is

the Constitution which is supreme and sovereign and Parliament will have to act
within the limitations imposed by the Constitution.This is a mark of distinction
between British Parliament and the Indian Parliament. British Parliament is sovereign.
“One of the hallmarks of such sovereignty is the right to make or unmake any law
which no court or body or any person can set aside or override.” On the other hand,
the Indian Parliament is a creature of the Constitution and its powers, privileges and
obligations are specified and limited by the Constitution. A legislature created by a
written Constitution must act within the ambit of its power as defined by
theConstitution and subject to the limitations prescribed by the Constitution Any act
or action of the Parliament contrary to the constitutional limits will be void.
Freedom Of Speech -Articles 105(1) and 194(1)

• Article 105, clause (1), expressly safeguards freedom of speech in parliament. It

says: there shall be freedom of speech in parliament. Clause (2) further provides that
no member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in parliament or any committee thereof. No
action, civil or criminal, will therefore lie against a member for defamation or the like
in respect of things said in parliament or its committees. The immunity is not limited
to mere spoken words; it extends to votes, as clause (2) specifically declares, viz. any
vote given by him in parliament or any committee thereof. Though not expressly
stated, the freedom of speech would extend to other acts also done in connection with
the proceedings of each House, such as, for notices of motions, questions, reports of
the committee, or the resolutions.
 P.V. Narsimha Rao v. State (JMM Bribery
Case)
• Court has held that the privilege of immunity from courts proceedings in Article 105 (2) extends
even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner
in Parliament. The majority (3 judges) of the Apex Court did not agree with the minority (2 judges)
and explained that expression “in respect of” in Article 105(2) must be given a wide meaning so as
to comprehend an act having a nexus or connection with the speech made or a vote given by a
member in parliament or any committee thereof. So interpreted, it would include within its ambit,
acceptance of bribe by a member in order to make a speech or to cast his vote in parliament or any
committee thereof in a particular manner. Therefore, the bribe taker MPs, who had voted in
parliament against no- confidence motion were held entitled to protection of Article 105(2) and
were not answerable in a court of law for alleged conspiracy and agreement. The court further held
that the bribe taker MP, who did not vote on the no- confidence motion was not entitled to
protection under Article 105(2). To the bribe giver MPs it was held, the protection under Article
105(2) was not available. The court further ruled that the Lok Sabha could take action for breach of
privileges or contempt against the alleged bribe givers and against the alleged bribe takers, whether
or not they were members of parliament.
 Right Of Publication Of Proceedings- Articles
105(2),194(2) and 361-A

• Clause (2) of Article 105 (as well as Article 194) expressly declares 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”.
• Article 361-A is titled as “Protection of publication of proceedings of Parliament and State
Legislatures.” It provides in clause (1) “No person shall be liable to any proceedings, civil
or criminal, in any court in respect of the publication in a newspaper of a substantially true
report of any proceedings of either House of Parliament or the Legislative Assembly, or, as
the case may be, either House of the Legislature, of a State, unless the publication is
proved to have been made with malice.”
• clause (2) 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 reports or matters published in a
newspaper.”
 OTHER PRIVILEGES

Clause (3) of Article 105, as amended 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 yet done, shall be such as on 20th June 1979 i.e., on
the date of commencement of Section 15 of the 44th Amendment Act, 1978.
(1) Freedom from Arrest-The members of Parliament also enjoy freedom from arrest. From
this freedom it is understood that no such member shall be arrested in a civil case 40 days
before and after the adjournment of the House (Lok Sabha or Rajya Sabha) and also when the
House is in session.
(2) Right to Exclude Strangers-Each House of Parliament enjoys the right to exclude strangers
(no-members or visitors) from the galleries at any time and to resolve to debate with closed
doors. The punishment may be in the form of admonition, reprimand, or imprisonment.
(3) Right to Prohibit the Publication of Proceedings
(4) Right to Regulate internal Proceedings-In Indian Union, each House is a High court of
Parliament. Therefore, the House has the right to regulate its internal affairs. A member of
the House is free to say whatever he likes subject only to the internal discipline of the House
or the Committee concerned.
(5) Right to Punish for Contempt of the House-In India, the Parliament has been given
punitive powers to punish those who are adjudged guilty of contempt of the House. Such
contempt can be committed by the members of any House or any outsider.When a member
of the House is involved for parliamentary misbehavior or commits contempt he can be
expelled from the House.
 CASE LAWS

• In Gunupati Keshavram Reddi v. Nafisul Hasan,one Homi Mistry was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for
contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s
custody. On his applying for a writ of habeas corpus on the ground that his detention was
in violation of Article 22(2), the Supreme Court quashed the detention and ordered his
release as he had not been produced before a Magistrate within 24 hours of his arrest as
provided in Article 22 (2). This decision therefore indicated that Article 194 (or Article
105) was subject to the fundamental right guaranteed under Article 22(2) in Part III of the
Constitution.
• However, in M.S.M. Sharma v. S.K. Sinhait was also contended by the petitioner that
the privileges of the House under A.194 (3) are subject to the provision of Part III of
the Constitution. In support of his contention the petitioner relied on the Supreme
Court’s decision in Gunupati Keshavram Reddi v. Nafisul Hasan. But, in Sharma’s
case the Supreme Court held that in case of conflict between fundamental right under
Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. As
regards Article 21, on facts the Court did not find any violation of it.
• In Re Under Article 143,the Supreme Court explained the proposition laid down
in M.S.M. Sharma case and said:
• We do not think it would be right to read the majority decision as laying down a
general proposition that whenever there is a conflict between the provisions of the
latter part of Article 194(3) and any of the provisions of the fundamental rights
guaranteed by Part III, the latter must always yield to the former. The majority
decision, therefore, be taken to have settled only that Article 19(1)(a) would not apply
and Article 21 would.
CONCLUSION

• Parliamentary privileges have become a complex problem, but these days it is being
increasingly realized that privileges are essential for elected representatives of the
people and the members of Parliament and such press as well as outside public must
respect these in true sense and spirit.