Faculty of Law

2024-25

SEMINAR COURSE AND RESEARCH

TOPIC - PARLIAMENTARY PRIVILEGES IN

YEAR AND SEMESTER - LL.M - III Semester

SPECIALIZATION - CONSTITUTIONAL LAW

I. INTRODUCTION

II. HISTORICAL DEVELOPMENT OF “PARLIAMENTARY PRIVILEGE”

III. CODIFICATION OF PRIVILEGES

IV. PARLIAMENTARY PRIVILEGES IN RELATION TO FUNDAMENTAL RIGHTS:

VII. CONCLUSION

VII. REFERENCES
INTRODUCTION

Parliamentary privileges are essential elements that empower legislators to perform their duties
effectively, ensuring the smooth functioning of a democratic system. In India, parliamentary
privileges are bestowed upon members of Parliament to safeguard their independence, facilitate
open debates, and uphold the principles of democracy.
Parliamentary privileges are a special case to customary rule and are
expected to permit parliament and members of Parliament to play out their obligations unafraid
of any threat fear or penance, and short of hindrance.
Article 105 of the Indian Constitution defines the parliamentary privileges of both the Housesof
Parliament and of their members and committees while the privileges of “legislature of a State”
is used in Article 194 .

In constitutional writings, the term “parliamentary privilege” is used to define the types of
rights and immunities that are given by Article 105 of the Indian Constitution to the membersof
the Indian Parliament. To quote Sir Thomas Erskine, “The sum of the peculiar rights
enjoyedby each House collectively is 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.”1 According to Sir Thomas
Erskine May, the distinctive mark of a privilege is its ancillary character. Privileges are
enjoyedby the individual members of the House because the House cannot perform its
functions without unobstructed use of the services of its members and by each House for the
protection of its members and for its own authority and dignity.

HISTORICAL DEVELOPMENT OF “PARLIAMENTARY PRIVILEGE”

In Article 105 of the Indian Constitution, two privileges, namely, freedom of speech and
freedom of publication of proceedings are expressly mentioned in clause (1) and clause (2) of
the Article. With respect to the other privileges, clause (3) before its amendment in 1978 2 laid
down that the powers, privileges and immunities of the members of the Parliament of India

1
Sir Thomas Erskine May, Parliamentary Practice (16th Edition) Chapter III.
2
Constitution (44th Amendment) Act, 1978.
shall be those enjoyed by the House of Commons of the UK at the commencement of the
Constitution until they were defined by an Act of Parliament. Though clause (3) was
amended in 1978 and the amendment has changed the wordings in the clause, the current
position is the same as before, which means that the powers, privileges and immunities are
determined on the basis of what they were prior to the commencement of 1978 amendment
are still the same as were enjoyed by the House of Commons in UK at the time of the
commencement of the Constitution.

For the effective functioning of Parliamentary democracy, the freedom of speech in

Freedom of speech in the Parliament is subject to the Constitution and to the rules and
standing orders. However, a restriction is imposed on this Article by Article 121 (similarly
Article 211). The said restriction is that no discussion shall take place in any House with
respect to the conduct of a Supreme Court Judge or a High Court Judge in discharge of his
duties except when a motion for his removal is under consideration.

The privilege of the freedom of speech in the House of Commons is very well established and
it owes this characteristic to a case famously known as the Strode’s case which happened as
early as 1512.

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 freedom of speech which is guaranteed by clause (1) of Article 105 is very different from
that which is given under Article 19 (1) (a) which is enjoyed by the citizens of India as a
fundamental right. The freedom of speech given in Article 19 does not protect an individual
absolutely from what he says. There are reasonable restrictions given in clause (2) of Article 19
regarding the same. In Article 105, the term “freedom of speech” means that no Member of
Parliament will be liable to any proceedings in any court for the statements made by him inthe
debates in the Parliament or any committee of the Parliament whatsoever. Therefore, the
freedom of speech given under Article 105 cannot be restricted under clause (2) of Article 19
as was held by the Supreme Court in the case of Narasimha Rao.3

Clause (2) of Article 105 has two parts. The first part says that no Member of Parliament shall
be liable to any court proceedings for anything said by him or for any vote given by him in the
Parliament or any committee thereof. The second part says that no person shall be liable in
respect of the publication by order under the authority of a House of Parliament of any paper,
report, vote or proceedings.

Though it has not been expressly stated but the Freedom of Speech given in Article 105 also
extends to any other act which is done in connection with the proceedings of either House, for
example, for notices of motions, questions or the resolutions as was held by the Supreme Court
in the Tej Kiran case.4

Clause (2) of Article 105 confers immunity for anything that is said in the parliament by the
members of the parliament. The word “anything” here is of the widest importance and is
equivalent to “everything.” The only limitation in this Article arises from the words “in
Parliament.” The words “in Parliament” means during the sitting of Parliament and during the
course of business of the Parliament. Once it is proved that the Parliament was sitting and the
business of the Parliament was being transacted, then anything said during the course of that
business is immune from any court proceedings.

As was said by the Supreme Court in the Tej Kiran case, “This immunity is not only complete
but is as it should be. It is of essence of the Parliamentary system of Government that people’s

3
P.V. Narasimha Rao v. State AIR 1998 SC 2120.
4
Tej Kiran Jain v. M. Sanjiva Reddy AIR 1970 SC 1573.
representatives should be free to express themselves without fear of the legal consequences.
What they say is only subject to the discipline of the rules of Parliament, the good sense of
the members and the control of proceedings by the Speaker. The courts have no say in the
matter and should really have none.”

This view came to be reiterated in the P.V. Narasimha Rao case. Here, it was held that the
privilege of immunity from court proceedings given by Article 105(2) to each Member of
Parliament extended even to bribes taken by the members of the Parliament for voting in a
particular manner. The Supreme Court said that by reason of Article 105(2), no Member of
Parliament is answerable to any Court of law for anything said or done by him in the
Parliament and that such a wide freedom of speech and vote is sine qua non for the effective
functioning of a parliamentary system of Government. However, rejecting the view that the
bribe givers and bribe takers had not committed any offence by reason of Article 105 (2), the
Supreme Court said that the bribe givers and bribe takers had committed breach of privilege
and contempt of the House (Lok Sabha) hence the Parliament could proceed against them for
the same.

This decision however has been heavily criticized and has invoked so much controversy and
dissatisfaction that its review was sought in the court. This review petition however was
dismissed on the ground of delay.

However, clause (1) and clause (2) of Article 105 protect only what is said within the House.
If a Member of Parliament publishes his speech outside the Parliament then the concerned
immunity would not be available to him.6 Also, this Freedom of Speech as given by Article
105 is only available to a Member of Parliament when he attends the session of Parliament. 7

It can be said here that common law gives the defence of “qualified privilege” to fair and
accurate unofficial reports of Parliamentary proceedings published in a newspaper or the like,
as was held in the case of Wason8, wherein it was observed that it was of paramount public
and national importance that Parliamentary proceeding be communicated to the public who
have a genuine interest in knowing about the status of their country’s Parliament. However,
a fake

5
Balwant Singh Malik, “P.V. Narasimha Rao v. State: A Critique” (1998) 8 SCC J-1.
6
Jatish Chandra Ghose v. Harisadhan Mukherjee AIR 1956 Cal 433.
7
K. Ananda Nambiar & R. Umanath v. Govt. of Madras AIR 1966 SC 657.
8 Wason v. Walter (1868) LR QB
4 73.
report published with the intent to injure the reputation of an individual will not be permitted
to take the protection of qualified privilege. The position of the law is the same in India as
well. The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no
person shall be liable to any proceedings in any court in respect of the publication of a true
report of the proceedings of either House of Parliament, unless it is proved that the
publication has been made out of malice or if the publication was expressly ordered to be
expunged by the Speaker9. This position has become much stronger as a result of the insertion
of Article 361-A by the Constitution (44th Amendment) Act, 1978.

With respect to the other privileges conferred by Article 105 (3) as amended, declares that the
privileges of each House shall be such as determined from time to time by the Parliament.
Since the Parliament has not done so the current position is that of what clause (3) provided
before its amendment on 20 June 1979, i.e. it is the same as that enjoyed by the House of
Commons in England. However, there are also certain privileges which the Parliament of
India cannot enjoy but which are enjoyed by the House of Commons. For example, the
privilege of access to the Sovereign which is exercised by the House of Commons through its
speaker has no application in India. Unlike the House of Commons, the Parliament of India
cannot discharge any judicial function whatsoever and cannot claim to be regarded as a court
of record.10

CODIFICATION OF PRIVILEGES

The term “privileges” is used in constitutional writings to mean both rights and immunities.
Power to punish for breach of privilege or contempt, freedom of speech, debates in House
and right to prohibit the publication of its proceedings are just a few examples from the many
privileges or immunities granted to a Parliament in a democratic setup. These privileges and
immunities, by protecting its authority and self-esteem allow the legislature to carry on its
functions more effectively and independently without any interference from anyone.

In India, as the idea of Parliamentary privilege was derived from England, it has the same
nature of not being codified but being in a crystallized form as a result of resolutions,
standing

9
This act was repealed by the Congress Government during the Emergency in 1976. However, the
Parliamentary Proceedings (Protection of Publication) Act, 1977 was passed by the Parliament and it received
the assent of the President on 18.04.1977.
10
Powers, Privileges and Immunities of State Legislatures, re AIR 1965 SC 745.
 orders, conventions and practices of the Houses and they are a part of the Law and the
custom of Parliament ( Lex et consuetude Parliamenti).11

The way in which the said immunities given in Article 105 of The Constitution are to be
exercised can be decided only by the respective Houses and the judiciary has no say in it
whatsoever. The judiciary is confined to the borders of deciding whether a particular privilege
or immunity exists or not. If and when any warrants are issued or any resolutions are passed
in the Parliament in its contempt proceedings then the authority to decide such a case vests
completely in the Parliament only and it cannot be challenged in any court of law throughout
the whole country. It is also very clear the exercise of a legislative privilege cannot be struck
down on the ground of alleged irregularity in procedure as laid down expressly in Article 122
(1). The courts will only interfere regarding the exercise of a legislative privilege when it is
clear to them that the exercise of such a legislative privilege is unconstitutional or is vitiated
by fundamental illegality.

However, in India, the Parliament cannot claim to have its own powers independent of the
constitution itself because ultimately the Constitution alone is the source of all powers,
privileges and immunities granted to the Union Parliament and the State Legislatures.

Therefore, all the rules relating to the Parliamentary Privilege are decided by the Parliament
only. These rules which are decided by the Parliament are then laid down in the manuals of
Parliamentary Procedure, Rules of Procedure and Conduct of Business both in the Upper
House and the Lower House of India. These rules, a majority of times, are based on British
models. The ‘other privileges’ laid down in clause (3) of Article 105 are not explicitly
mentioned in the Constitution and hence have to be searched from the above mentioned
resources. This makes these ‘other privileges’ not comprehensive. As there is no codification
of these ‘other privileges’ even today, as a result of this, both the Houses of Parliament of
India can today also claim the rights and the immunities which were being enjoyed by the
British Parliament before the commencement of the Constitution of India. This character of
‘other privileges’ of being non-codified many a times results in ambiguity and vagueness of
the nature and scope of the ‘other privileges’.
The Supreme Court in Keshav Singh’s case observed that the privileges conferred on the
members are subject to the fundamental rights. The Supreme Court has also held that any
conflict arising between the privileges and the fundamental rights would be resolved by
adopting harmonious construction. The judiciary is very well aware of the fact that it does not
have jurisdiction over parliamentary matters but it is necessary for the society that any violation
should be resolved by the court as it deems fit.

Different advantages, as provided under the Rules of Procedure and Conduct of Business
in Lok Sabha by specific legislative inputs have been discussed hereunder:

Right to prohibit the publication of proceedings

As stated in Article 105(2) of the Constitution, no person shall be held liable for publishing any
reports, discussions etc. of the house under the authority of the member of the house. For
paramount and national importance, it is essential that the proceedings should be communicated
to the public to aware them about what is going on in the parliament.

But, any partial report of detached part of proceedings or any publication made with malice
intention is disentitled for the protection. Protection is only granted if it reflects the true
proceedings of the house. If any expunged proceedings are published or any misrepresentation
or misreporting is found, it is held to be the breach of the privilege and contempt of the house.

Right to exclude strangers

The members of the house have the power and right to exclude strangers who are not members
of the house from the proceedings. This right is very essential for securing free and fair
discussion in the house. If any breach is reported then the punishment in the form of admonition,
reprimand, or imprisonment can be given.

The right to punish members and outsiders for breach of its privileges

The Indian Parliament has the power to punish any person whether strangers or any member of
the house for any breach or contempt of the house. When any breach is committed by the
member of the house, he/she is expelled from the house.

This right has been defined as ‘keystone of parliamentary privilege’ because, without this
power, the house can suffer contempt and breach and is very necessary to safeguard its authority
and discharge its functions. This power has also been upheld by the judiciary in most of the
cases. The house can put in custody any person or member for contempt till the period the house
is in session.

The right to regulate the internal affairs of the house

Each house has a right to regulate its proceedings in the way it deems fit and proper. Each house
has its own jurisdiction over the house and no authority from the other house can interfere in
regulation of its internal proceedings. Under Article 118 of the Constitution, the house have
been empowered to conduct its regulation for proceedings and cannot be challenged in the court
of law on the ground that the house is not in accordance with the rules made under Article 118.
The Supreme Court has also held that this is general provision and the rule is not binding upon
the house. They can deviate or change the rule anytime accordingly.
Recent Instances of Breach of Parliamentary Privileges

1. Bharatiya Janata Party (BJP) MP Nishikant Dubey on Monday wrote a letter to Union
IT Minister Ashwini Vaishnaw and Union Minister of State (MoS) IT Rajeev
Chandrashekhar making "cash for query" allegations against Trinamool Congress MP
Mahua Moitra and demanding an inquiry committee against her.

2. Raghav Chadha was suspended from the Upper House on August 11 for "breach of
privilege" during the Monsoon Session after complaints. Raghav Chadha was accused of
forging the signatures of five Rajya Sabha MPs in a motion related to the Delhi Services Bill in
the Rajya Sabha. The Bill was passed by both Houses. Raghav Chadha was accused of not
obtaining the consent of five Rajya Sabha MPs before including their names in a select
committee. Not only this, Raghav Chadha also allegedly forged their signatures on the motion.

3. In February 2023, a breach of privilege notice was given to Shiv Sena MLA- Sanjay
Raut over his comment on terming the legislative assembly as ‘chor mandal- a group
of thieves’.

4. In March 2023, Congress MP Rahul Gandhi was subjected to privilege notice by Lok
Sabha MP Nishikant Dubey for “unsubstantiated”, “defamatory,” and
“unparliamentary” language used in the motion of thanks on the President’s address.

5. In March 2023, a privilege notice was given against Prime Minister Narendra
Modi. Congress MP KC Venugopal moved a question of privilege before the Chairman
of Rajya Sabha (Jagdeep Dhankhar) over the remarks made by PM Modi
about “Nehru’s surname: why the former PM’s family does not use the Nehru title”.
PARLIAMENTARY PRIVILEGES IN RELATION TO FUNDAMENTAL RIGHTS:
A BRIEF HISTORY ABOUT THE CONFLICT BETWEEN THE TWO AND THE
CURRENT POSITION OF THE RELATIONSHIP BETWEEN THE TWO

The Preamble of the Constitution of India contains the Fundamentals of the Indian
Constitution which secures to its citizens justice, social, economic and political; liberty of
though expression and belief, equality of status and opportunity; and to promote among them
all fraternity assuring the dignity of the individual and unity of the nation. The essence and
the theme of these objectives when read can be found throughout the whole Constitution of
India. The reason that the Fundamental Rights were incorporated in Part III of the
Constitution was to give effect to these very objectives. However, the idea of the
Fundamental Rights can be found in the Indian polity in a very tenuous manner even before
the present Constitution came into force.

These so called ‘Fundamental Rights’ are regarded as fundamental because these rights are
the most essential for an individual in order to live freely and with dignity. These
Fundamental Rights enshrined in Part III of the Indian Constitution are unchallengeable in the
sense that no law, ordinance or custom can abridge or take away a ‘Fundamental Right’.
However, this characteristic of the Fundamental Rights is subject to the qualifications defined
in the Constitution itself.

In India, the importance of Fundamental Rights has been observed in the historical case of
Maneka Gandhi v. Union of India.12 It was observed in this case by Bhagvati J. that, “These
fundamental rights represent the basic values cherished by the people of this country (India)
since the vedic times and they are calculated to protect the dignity of the individual and create
conditions in which every human being can develop his personality to the fullest extent”.

12
Maneka Gandhi v. Union of India 1978 AIR 597.
Any member of the public who has an interest can represent some other person in the court if
that person’s legal right is violated if the concerned person cannot approach the court due to
poverty or some other valid reason, however the position is different when it comes to
privileges. These privileges even though they are a part of the law of the land are to a certain
extent an exception from the ordinary law.

Now, after the arrival of the Constitution of India there have been numerous conflicts
between the Fundamental Rights and the Parliamentary Privileges throughout the years. The
questions which arose were whether the fundamental rights control the parliamentary
privileges in any way, which would prevail in case of a conflict between the two, the
fundamental rights or the parliamentary rights and immunities.

The power of Judicial Review is contained in clause (2) of Article 13. According to this
clause, the Supreme Court can strike down any law which violates any fundamental right.
With respect to the power of judicial review, the Supreme Court had held that it would not
extend to clause
(1) and clause (2) because the language of these clauses itself prohibited judicial review. 13
However, with respect to clause (3), the Supreme Court held that the uncodified privileges
were not ‘law’ within the meaning of Article 13 (2) and hence were not capable of being
struck down. As a result of this decision of the Supreme Court, the Parliament has, till this
date, resolved to keep the privileges coming under clause (3) uncodified in the fear that if
these privileges are codified then they can and will be struck down by the Supreme Court
when there is a conflict with any fundamental right. This fear also stems from the fact that
many privileges which are still enjoyed by the Indian Parliament today have been removed
from the British Parliament and do not exist anymore. There are many privileges which are
likely to cause a conflict with the fundamental rights and hence if codified into a statute,
there will be many

13
Pandit MSM Sharma v. S.K. Sinha AIR 1954 SC 636
privileges which the Parliament will not be able to enjoy anymore. As a result of this, every
Member of Parliament in India enjoys a large number of privileges, some of which are in
direct conflict with rights in actual practice and which have ceased to enjoy the status of
privileges in England and other countries.

There is also some controversy regarding the procedure which is followed in the Parliament
of India with respect to cases of where there is a breach of privilege. The Parliament is yet to
lay down a set of procedure for dealing with instances of breach of privilege. Some examples
of such controversy coming were whether a hearing must be given to the accused or whether
he must be given a right of legal representation and the like. The Parliament of India till this
date follows a policy of different procedure for each case. All the cases regarding the breach
of privilege which come before the Parliament are guided solely by the exigencies of the hour
the popular public opinion in a particular case.

Until now the Supreme Court had not interfered with such a procedure because of its
restrictive interpretation of Article 122. Any kind of review of the procedure of the
Parliament was avoided by the court even if it was one which would affect the life and liberty
of a person under Article 21.14

A case was famously decided in 2007 which dealt with parliamentary privilege in relation to
Article 21.The name of the case was Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha. 15 In
this case, 11 members of the Parliament were caught taking bribes in the camera of a news
channel. They had taken the bribes to ask certain questions in the Parliament thereby
misusing their powers for illegal gratification and monetary gain. After the event of such an
act becoming public, the Parliament suspended these members who in turn approached the
Supreme Court for seeking remedy. The Speaker and the Chairman of the Lower and the
Upper House refused to come before the Supreme Court. They gave the reason that since the
jurisdiction regarding the exercise of privileges was completely vested in the Parliament, the
Supreme Court had no say in it. However, the Supreme Court still decided to proceed with
the case inspite of the Parliament’s stand.

The first ever binding change in the law of privileges in India was brought about in this case.
The Court held that the power of judicial review under Article 13 (2) would extend to
privileges

14
Constitution of India, Article 21 states; Right to Life and Personal Liberty- No person shall be deprived of his
life or personal liberty without a procedure established by law.
15
JT 2007 (2) SC 1.
on a case to case basis overruling its earlier decisions. The restrictive interpretation of Article
122 as mentioned above was done away with after this decision and a very wide
interpretation was given to Article 122 in the judgment of this case. It was held that although
Article 122 did not allow an inquiry into the procedure of Parliament by the judiciary or
anyone on grounds of procedural irregularity, however, it did not exclude instances of review
of a procedure if it was found to be illegal or unconstitutional.

In arriving in its decision, the Supreme Court relied on various foreign decisions 16 as well as
its own decision in the Presidential Reference of 1964. 17 The change in law brought about by
this judgment has crucial implications on the accountability of our Parliamentarians who until
now were not liable to be questioned by any court in respect of their functions as
parliamentarians.

16
House of Commons v. Vaid (2005) 1 SCR 667, Harvey v. New Brunswick 1996 (2) SCR 876, Prebble v.
Television New Zealand Ltd. 1994 (S) WLR 970, Speaker of the House of Assemble v. Canadian Broadcasting
Corp. (1993) 1 SCR 319.
17
(1965) 1 S.C.R. 413.
CONCLUSION

The Parliament of India represents the people of India and it mirrors the minds and
aspirations of these very people. Many a times, legislators from the opposing benches while
analyzing the work of the working government tend to make some serious attacks and this
happens often in today’s time. It is therefore of prime importance that the parliamentarians
are given all the privilege which they need in order to perform their job effectively.

Clause (3) of Article 105 is the main reason why there is a demand for the codification of
privileges because as a result of this clause the said privileges can be very unclear and vague
at times. The reason for the silence of the Parliament in this issue is that they fear that if the
privileges are codified then they will lose many of the privileges enjoyed by them. Also, there
will be intervention of the Courts in matters of the parliamentary privileges.