Freedom of Members of Parliament and Legislation
Freedom of Members of Parliament and Legislation
Freedom of Members of Parliament and Legislation
PARLIAMENT AND
LEGISLATION
BY AAKASH SINGH CHAUHAN
A 27
INTRODUCTION
• 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
• 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.