PARLIAMENTARY

PRIVILEGES
PRESENTED BY:
Utkarsh Khandelwal
1643
PRIVILEGE
■ WHAT IS PRIVILEGE ?
A simple definition of privilege is that it is an exceptional right or
exemption. In its legal sense it means an exemption from some duty,
burden, attendance or liability to which others are subject.
In Parliamentary language, however, the term applies to certain rights
and immunities enjoyed by each House of Parliament collectively, and by
members of each House individually without which they cannot discharge
their functions.
They are enjoyed by individual members, because the House cannot
perform its functions without unimpeded use of the service of its
members, and by each House collectively for the protection of its
member and the vindication of its own authority and dignity.
PARLIAMENTARY PRIVILEGE
■ The sum of the peculiar rights enjoyed by each house collectively which are
constituent part of the Parliament, and by members of each house of parliament
individually, without which they cannot discharge their functions, and which exceed
those possessed by other bodies or individuals.
■ The members of Parliament are exempted from any civil or criminal liability for any
statement made or act done in the course of their duties. The privileges are claimed
only when the person is a member of the house. As soon as he ends to be a
member, the privileges are said to be called off.
■ These privileges are essential so that the proceedings and functions can be made in
a disciplined and undisturbed manner.
While the more important of these privileges, namely freedom of speech in
Parliament and immunity of members from any proceedings in courts in respect of
anything said or any vote given by them in Parliament, are specified in the
Constitution itself and some of them are specified in certain statutes and the Rules
of Procedure and Conduct of Business in Lok Sabha, others are at present based on
the precedents and conventions which have grown in this country, in terms of the
provisions of the Constitution, until defined by Parliament by Law.
But I would like to discuss the privileges that are mentioned in constitution of india
due to paucity of time.
CONSTITUTIONAL PROVISIONS
■ Article 105 of the Constitution of India which provides for powers, privileges and
immunities of the Houses of Parliament and of the members and the Committee.
■ 105(1) - Subject to provisions of this Constitution and to the rules and standing
orders regulating the Procedure of Parliament, there shall be freedom of speech in
Parliament
■ 105(2) No member of Parliament shall be liable to any proceeding 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 or any report, paper, votes or
proceedings.
■ Article 122 of Constitution of India prohibits the courts from questioning
parliamentary proceedings on the ground of 'procedural irregularity‘.
FREEDOM OF SPEECH
■ The Most important privilege of members of Parliament is freedom of speech in
Parliament.
■ This privilege is embodied in clause (1) and (2) of Article 105 of the Constitution.
■ This privilege is based on Article 9 of the Bill of Rights, 1689 of the United Kingdom
whereby it was declared:— “That the freedom of speech, and debate or proceedings
in Parliament, ought not to be impeached or questioned in any court or place out of
Parliament.”
■ No action can be taken against a member of Parliament in any court or before any
authority other than Parliament in respect of anything said or any vote given by him
in Parliament or any Committee thereof. It would be a breach of privilege to institute
any legal proceedings against a member in respect of anything said by him in
Parliament.
Immunity from civil and criminal proceedings
■ First part of Clause (2) of Article 105 states: No member of Parliament shall be
liable to any proceeding in any court in respect of anything said or any vote given by
him in Parliament or any Committee thereof. The scope of this immunity was
examined by the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy. The Court
held:
■ "This article confers immunity inter alia in respect of 'anything said ... in Parliament'.
The word 'anything' is of the widest import and is equivalent to 'everything'. The only
limitation arises from the words 'in Parliament' which means during the sitting of
Parliament and in the course of the business of Parliament. We are concerned only
with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its
business was being transacted, anything said during the course of that business
was immune from proceedings in any court.
■ in P.V. Narasimha Rao v. state, on the scope of Article 105(2), the majority held that
Article 105(2) puts negatively what Article 105(1) states affirmatively. Both sub-
articles must be read together to determine their content. By reason of Article
105(2), no Member of Parliament is answerable in a court of law or any similar
tribunal for what he has said in Parliament. A vote cast either by voice or gesture or
with the aid of a machine is given the same protection like a spoken word. "What is
protected is what has been said and a vote that has been cast." The expression "in
respect of" in Article 105(2) is wide enough to confer absolute protection against
court proceedings that have a nexus with what has been said and vote that has
been cast in Parliament.
■ The Supreme Court considered that this wide freedom of speech and vote is a "sine
qua non" for the effective functioning of a parliamentary system of government.
Right of publication of proceedings
■ Part two of Article 105(2) provides that no person shall be liable in respect of the
publication by or under the authority of the House of Parliament of any report, paper,
votes or proceedings.
■ The Parliamentary Proceedings (Protection of Publication) Act, 1956 provided that
no person shall be liable to any proceedings, whether civil or criminal, in any court in
respect of the publication of a substantially true report of the proceedings of either
House of Parliament unless it is proved that the publication of such proceedings was
expressly ordered to be expunged by the Speaker. This position has been made
much stronger by the insertion of Article 361-A by the Constitution (44th
Amendment) Act, 1978
SOME LIMITATIONS
■ Freedom of speech should be in accordance with the constitutional provisions and
subject to rules and procedures of the parliament, stated under Article 118 of the
Constitution.
■ Under Article 121 of the Constitution, the members of the parliament are restricted
from discussing the conduct of the judges of the Supreme Court and the High Court.
But, even if this happens, it is the matter of the parliament and the court cannot
interfere.
■ No privilege and immunity can be claimed by the member for anything which is said
outside the proceedings of the house.
 Art. 122
■ Article 122 expressly provides that the validity of any proceedings shall not 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 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.
■ It must be remembered that Article 122 of the Constitution does expressly bar the
jurisdiction of courts in the affairs of the House. The Court has even refused to
enquire into the validity of the passing of a law on the ground that several members
were under preventive detention.
CONCLUSION
■ Fifty years have elapsed since Independence and the experience
gained in the working of the Constitution in this long period is
sufficient to guide the process of codification of legislative privileges.
It is, therefore, urged that steps to codify parliamentary privileges in
India should be initiated at the earliest as otherwise it may become
very difficult for us to fall back on this ancient British practice which
may not have any relevance either in England or in India today.