Libertatem Magazine

 Parliamentary Privileges

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The constitution of India provides privileges to both the Parliament as well as the State Legislature. The constitutional provisions regarding both were identical. Article 105 and 194 provides privileges to the legislature in India. While Article 105 deals with both the House’s parliament and its members and committees, Article 194 deals with the State Legislature and its members and committees. Article 194 is an exact reproduction of Article 105. The constitution expressly provides two important privileges to both I.e., House of Parliament’s privileges and its members of each State, (b) right of publication of its proceedings. The parliamentary privilege is defined in T.F. May. The theory of Parliamentary privileges in India was grabbed from the British constitution.

Thus, privilege, although a part of the regulation of the land, is to a certain extent an exemption from the overall general law. Certain rights and immunities which includes freedom from arrest or freedom of speech belong usually to individual Members of every House and exist because the House can’t carry out its functions without unimpeded use of the services of its member. Other such rights and immunities such as the power to punish for contempt and the power to regulate its constitution belong in general to each House as a collective body, for the protection of its Members and the vindication of its authority and dignity Fundamentally, however, it’s only as a means to the effective discharge of the collective functions of the House that the individual privileges enjoyed by Members.

When any of those rights and immunities are neglected or attacked, the offense is called a breach of privilege and is punishable under the regulation of Parliament. Each House additionally claims the proper to punish as contempt’s action which, at the same time as not breaches of any specific privilege, hinder or obstruct it inside the performance of its capabilities, or are offenses against its authority or dignity, such as disobedience to its valid instructions or libels upon itself, its Members or its officials.”

Parliamentary privileges of Union Parliament and State Legislature.

Parliamentary privileges are the special rights, immunities, exemptions enjoyed by the members of the two houses of parliament as well as the state and their committees. Both the rights were enjoyed by both the Houses of Parliament as well as the state, apart from this these rights were also given to the individuals who participate and speak in any committee of Parliament, the includes Union and state ministers, and the Attorney-general. One thing is that even if the President is a member of Parliament, the President doesn’t have the Parliamentary Privileges.

The parliamentary privileges were predominantly of two types – (a) collective privileges enjoyed by members of parliament and states legislatures, in which no man or woman either a member or outsider can be arrested and no legal process i.e., criminal or civil may be initiated in the premises of the residence without the permission of the presiding officer of the house. And no court has the right to investigate the proceeding of the Houses or any of its committees. Parliament or state legislature can punish members as well as outsiders for breach of its privileges or its contempt by way of reprimand, admonition, or imprisonment and also suspension in case of members. (b) Individual Privileges enjoyed by members of parliament and state legislatures- when the parliament or state legislature is in session, a member of parliament or a member of the state legislature or a privileged person may refuse to appear in the court or to present any proof in a court. The member of parliament or state legislature can’t be arrested at any stage in the session of the parliament or state legislature and forty days before the beginning and forty days after the end of the consultation. However, this privilege is available in criminal cases as well as in civil cases. No member of any of the houses of parliament or state legislature is liable to any proceedings in any given court for anything said or any vote by him/her in the parliament or its committees.

Freedom of speech expressly safeguards both the articles in the constitution and ought not to be impeached or questioned in any court or out of parliament. This article gives absolute immunity from the court for anything said within the four walls of the House during proceedings. If any of the members publish a defamatory speech made by him within the house then he does in his responsibility and risk and will hold liable under section 500 of the Indian Penal Code.

The right to the publication of its proceeding doesn’t extend to the publication made by any private person without the authority of the houses. In the case, Surendra v. Nahakrishna, the editor of the newspaper was held guilty of committing Contempt of Court for publishing a statement of the House. But it has also been said if a true report of parliamentary proceedings are published in a newspaper then according to the Protection of a Publication Act 1956, which provides that no person shall be liable to any proceeding civil or criminal in any court in respect of the publication of a substantially true report of proceeding of either of the Houses of Parliament unless it is proved that publication of such proceeding expressly ordered to be expunged by the speaker.

Other privileges, originally Article 105(3) and Article 194(3) provided that the privileges of the House of Parliament and its members which were enjoyed by the members of the Houses of the common in England on 26 January 1950 until defined by parliament by law. But it has omitted and has some similar changes in both the Articles after the 44th Constitutional Amendment. New privileges can be explained by by-laws made by parliament.

The privileges of access to the sovereign, which is exercised by the House of Commons through its Speaker to have at all times the right of access to the sovereign through their chosen representative, can have no application in India.

Freedom from Arrest- a member of parliament cannot be arrested or imprisoned on a civil proceeding within 40 days before and after the 40 days of a session of parliament. If a member is arrested within the period, he should be released so that he might be free to attend parliament. This privilege is available against civil arrest and doesn’t extend to arrest or imprisonment on a criminal charge, or contempt of Court, or preventive detention. If a member of a House commits a crime, he will be arrested like an ordinary person. In India, it had also held that the privilege does not extend to arrest or imprisonment on a criminal charge or for detention under Preventive Detention Act.

In India freedom from arrest has been confined to civil reasons and has now not been implemented to arrest on criminal charges or to detention under the Preventive Detention Act. Also, there is no privilege if an arrest is made below s.151 Criminal Procedure Code. It has been held in K. Anandan Kumar v. Chief Secretary The Government of Madras, that matter of Parliament, does not enjoy any unique status as compared to an ordinary citizen in recognition of legitimate orders of detention.

The new privileges can be defined by law made by parliament on the basis (1) freedom from arrest (2) Right to prohibit to the publication of its Report and Proceedings, (3) Right to exclude strangers from its proceedings and hold secret sessions, (4) Right to regulate Internal Proceedings, (5) Right to punish Members or Outsiders for contempt.

In India, these also endow a right of the House to regulate its constitution. When a seat of a member elected to the house turns vacant, the Election Commission, through a notification in the Gazette of India calls upon the Parliamentary constituency worried to choose a person for the reason of filling the vacancy. In India, Article 103 expressly gives that if any question arises as to whether a member of either House of Parliament has come to be issued any of the disqualifications, the question will be mentioned by the President whose decision will be very last. The President is however required to act on this behalf according to the opinion of the Election Commission.

As a long as the right to regulate inner proceedings are concerned Article 122 expressly provided that the validity of any proceedings shall now not be known as in question on the grounds of any alleged irregularity of process, and no officer or member of Parliament in whom powers are vested through or under the Constitution for regulating the procedure or the conduct of enterprise or for retaining order in Parliament shall be subjected to the jurisdiction of any court in admire of the exercise by him of those powers.

Each house has the power to punish its member for ‘contempt or breach of privilege. A member may be suspended or expelled from the House, or maybe sentenced to jail. The effect of the expulsion of a member from the house is that his seat becomes vacant. Expulsion, however, does not disqualify him from contesting elections for the same House.

Judicial Notice of Parliamentary Standing Committee Report – the judicial notice of parliamentary standing committee report can be taken under section 57(4) of Evidence Act in any of the proceedings under Article 32 and 136 and is admissible under section 74 of Evidence Act and such reliance on a report by the court does not amount to a breach of privilege. Parliamentary Standing Committee Report is in the public domain and can invite fair comments and criticism from citizens of India as such, in such a situation, citizens do not comment upon any member of parliament to hazard a violation of parliamentary privilege.

Privilege and Fundamental Rights- Article 19(1)(a) guarantees freedom of speech and expression to every citizen of India. But this right is subject to reasonable restrictions under clause (2) of Art. 19. This is right under Art. 105 is an independent right and is not subject to restriction under clause (2) of Art. 19(1). Therefore, it is clear that the freedom of speech under Art. 105 is different from the freedom of speech under Art. 19 which is subject to restriction.

Privileges and law courts

Article 105, so also Article 194 subjects the powers, privileges, and immunities of each House to all its members and all its committees not only to the legal guidelines made by the appropriate legislature but also to all different provisions of the Constitution. Both these articles a long way from managing the legislative powers of the Houses of Parliament or of State Legislature respectively are confined in scope to such powers of each House as it can be exercising one at a time functioning as a House.

A House of Parliament or Legislature can’t attempt by anyone or any case immediately as a court of justice can, but it could continue quasi judicially in instances of contempt of its authority or soak up motions regarding its privileges and immunities so that its order to seek for the elimination of obstructions to the due performance of its legislative functions. If any query of jurisdiction arises as to a certain matter, it has to be decided by way of a court of law in appropriate proceedings.

For example, the jurisdiction to strive a criminal offense which includes murder committed even within a House vest in ordinary courts and not in a Parliament or a State Legislature. Also, a House of Parliament or State Legislature cannot in a workout of any meant powers under Articles 105 and 194 decide election disputes for which unique government authorities have been constituted below the Representation of People Act, 1951 enacted in compliance with Article 329.

In the case, Keshav Singh vs Speaker Keshav Singh who was not a member of the U.P. Assembly was held guilty of contempt of the House and was sentenced to imprisonment for 7days. On behalf of Keshav Singh, his advocate, moved a habeas corpus petition alleging that his detention was illegal and mala fide because he was not allowed to defend himself. The petition was heard by the Bench of two Judges of the Allahabad High Court which granted interim bail to Keshav Singh and he was released, pending the decision of the case of merit. The Assembly then passed a resolution that the two Judges, Keshav Singh, and his advocate, had committed contempt of the House and directed Keshav Singh be immediately taken into custody and the two Judges and the advocate be brought into custody before the House. On this two Judges and the advocate separately moved the petition under Art. 226 in the High Court contending that the resolution amounted to contempt of Court and that it be set aside and its implementation be stayed by an interim order. The Full Bench heard the petition, which passed an interim order directing the stay of implementation of the Resolution of Assembly. The warrant of arrest against the two judges was withdrawn but they were asked to appear before the House and explain their conduct. The High Court again granted a stay against the implementation of this modified form of the resolution. At this stage, the President of India referred the matter to the Supreme Court under Art. 143 for its advisory opinion.

The Supreme Court by the majority of 6 to 1 – the two Judges were not guilty of committing contempt of the House by issuing an interim bail order. Under Art. 226, the High Court has jurisdiction to order the release of a person from illegal detention. The Courts in India can examine the validity of detention of a person sentenced by the Assembly under a general or unspeaking warrant and the English Law Courts cannot examine the validity of a general warrant issued by the House of Commons, which is not conferred on Legislature in India. In construing the power and privileges under Art. 194(3), other provisions of the Constitution must also be considered harmoniously. Art. 226 confers a wide power on the High Court to issue the writ of habeas corpus against any authority which according to Art. 12 includes the Legislature. Art. 121 prohibits any discussion in a State Legislature for the conduct of any Judge of the Supreme Court or High Court in the discharge of his duties. The powers that the House can claim must be shown to have subsisted in the House of Commons on the 26th January 1950, and it should be further shown that such claim was recognized by the Court in England. Secondly, not all the powers and privileges which belonged to the House of Common on 26th January 1950, can be claimed by the State Legislature under Art. 194(3).


There is a coherent demarcation as to what all rights and privileges are absolute and what isn’t. For instance, in India Legislative Assemblies and Parliament in no way discharge any judicial function, and their historic and constitutional heritage does not support their claim to seem as courts of the report in any sense. No immunity from scrutiny through courts of general warrants issued by the House in India can consequently be claimed.

Both the Parliament and State Legislatures should look mindfully earlier than making any regulation so that it doesn’t harm other rights. It is likewise a responsibility of the contributors to properly use those privileges and not misuse them for alternate functions that aren’t in the favor of the standard interest of the nation and public at large. Thus, what we should hold in mind is the fact that? Strength corrupts and absolute power corrupts genuinely. For this not to happen under the privileges granted, the public and the other governing body should usually be on vigil.


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