Dr.

Ram Manohar Lohia National Law University,

Lucknow

Subject:-Constitutional Law-II

Project On: - PARLIAMENTARY PRIVILEGES

Submitted By:-Stuti Sinha

B.A. LL.B. (4th Semester)
Roll No.-149

Submitted To: - Dr. C.M. Jariwala, Dr. Atul Kumar Tiwari & Ms. Ankita
Yadav
Professor, Associate Prof. (Law) & Assisstant Professor
(Law)

Dr. Ram Manohar Lohia National Law University

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Acknowledgement

Contributions of various people have resulted in this effort. I would like to take this opportunity
to thank Dr. C.M. Jariwala, Dr. A.K. Tiwari, Ms.Ankita Yadav who gave me the
opportunity to work on this project and without whose valuable support and guidance,
this project would have been impossible. I would like to thank the library staff for being a
wonderful support.

Stuti Sinha
Roll No. 149
Section-B

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................4
WHAT ARE PARLIAMENTARY PRIVELEGES?.............................................4
PARLIAMENTARY PRIVELEGES IN INDIA...................................................5
PARLIAMENTARY PRIVELEGES AND FUNDAMENTAL RIGHTS................9
CONCLUSION....................................................................................................10

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INTRODUCTION

The law of parliamentary privileges is contained in art 1051 and 1942 of the constitution. 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. In these articles the
privileges of freedom of speech in parliament and immunity to members from any proceeding in
any court of law in respect of anything said or vote given by them in parliament or any
committee there of have been specifically provided for. Having specifically incorporate the most
fundamental parliamentary privileges and most basic immunity in the text of the constitution, the
constituent assembly decided to leave the powers, privileges and immunities of each house of
parliament and state legislature and as well as their members and committees in other respects, to
be defined by law by their respective houses from time to time.

The second limb of art 105(3) confers on parliament the powers privileges and immunities of the
House of Commons until no such law is made defining their privileges the specific provision
until so defined by law, has been the main source of controversies and arguments.

Dr. Ambedkar, Chairman of the Drafting Committee, pointed out that apart from the privilege of
freedom of speech and immunity from arrest, the privileges of parliament were much wider and
extremely difficult to define. In this view, it was not practicable to enact a complete code on
privileges and immunities of parliament as a part of the constitution and the best course was to
leave it to parliament itself to define its privileges and in the meanwhile to confer on parliament
the privileges enjoyed by the House of Commons.

WHAT ARE PARLIAMENTARY PRIVELEGES?

Privilege means a special or exceptional right or an immunity enjoyed by particular class of

persons or individuals which is not available to the rest of the people. As per Oxford
Dictionary3 the term privilege refers to the special right, advantage or immunity to the
particular person. It is special benefit or honour. In Parliamentary parlance the term

1
Constitution of India Article 105.
2
CoI, Article 194.
3
Oxford dictionary, 10th Edition, p.1138.

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privilege means certain rights and immunities enjoyed by each House of Parliament and its
Committees collectively, and by the members of each House individually without which they
cannot discharge their functions efficiently and effectively. These privileges are an exception to
ordinary law and are intended to allow parliamentarians to perform their duties without fear of
intimidation or punishment, and without impediment.

Sir Erskin May, British Constitutional Theorist states- Parliamentary privilege is the sum of the
peculiar rights enjoyed by each House collectively as 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. Thus privilege,
though part of the law of the land, is to a certain extent an exemption from the general law.
Certain rights and immunities such as freedom from arrest or freedom of speech belong
primarily to individual Members of each House and exist because the House cannot perform its
functions without unimpeded use of the services of its Members. Other such rights and
immunities such as the power to punish for contempt and the power to regulate its own
constitution belong primarily to each House as a collective body, for the protection of its
Members and the vindication of its own authority and dignity. Fundamentally, however, it is only
as a means to the effective discharge of the collective functions of the House that the individual
privileges are enjoyed by Members.4

PARLIAMENTARY PRIVELEGES IN INDIA

Article 105 of the Constitution relating to the "Powers, privileges and immunities of Parliament
and its members" and Article 194 relating to the State Legislatures and their members contain
certain enumerated privileges and powers while leaving room for a large number of uncodified
and unenumerated privileges to continue. Reference to certain other provisions like Articles 118,
121, 122, , is important as they also have a bearing on the subject.

Privileges available to members of legislature and parliament in India may be classified into two
groups

4
Sir Thomas Erskine May: Parliamentary Practice, 16 th Edition. Sir Thomas Erskine May: Parliamentary Practice,
16th Edition.

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 Privileges that are enjoyed by the members individually. These broadly constitute:
(1)Freedom of speech,(2) Freedom from arrest.
Privileges that belong to each House (Lok Sabha or Rajya Sabha) of Parliament
collectively.

INDIVIDUAL PRIVELEGES

Freedom of Speech

The basic idea of extending freedom of speech to members of legislature is to enable every
member to put forward without fear or favour, his/her arguments, for or against any matter,
before the House.

Article 1, Section 6 of the U.S. Constitution grants immunity to members of the Congress from
arrest, during their attendance at the session of their respective Houses, in all cases except
treason, felony and breach of peace. In Hutchinson v. Proxmire5 , the U. S. Supreme Court has
held that a civil suit could not be instituted against the senator for defamatory statements made
by him on the floor of the Senate.

Similarly Article 105, clause (1), expressly safeguards 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. The
immunity is not circumscribed to mere spoken words; it extends to votes, as clause (2) further
declares that. any vote given by him in parliament or any committee thereof. Although not
expressly stated, the freedom would bring within its ambit other acts done in connection with the
proceedings of each House, such as, notices, questions etc. But a member cannot claim
immunity for any speech that he makes outside the House even if it is a verbatim reproduction of
what he has said inside the House.

As is the case with most of the freedoms, this freedom too is not unqualified and it is controlled
by the other provisions of the Constitution and the rules and standing orders regulating the
procedure of the House. The rules would constitute those framed under Article 1186 of the

5
443 U S 111 (1979).
6
CoI Article 118.

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Constitution governing procedure and business of the house. In Keshav Singhs Case7 the Court
held that the freedom of speech would only be subject to the supervisory powers of the Speaker
of the Assembly under the internal rules regulating the procedure and conduct of business of the
House. Other provisions of the constitution would include provisions like Articles 1218 and 2119,
which prohibit any discussion, in the Parliament and the State Legislatures regarding the conduct
of a Supreme Court Judge or a High Court judge, relating to the discharge of his official duties.

Freedom from Arrest

In India members of the house enjoy freedom from arrest. Freedom from arrest has been limited
to civil causes and has not been applied to arrest on criminal charges or to detention under the
Preventive Detention Act. It has been held in K. Anandan Kumar v. Chief Secretary, Government
of Madras10 , that matters of Parliament do not enjoy any special status as compared to an
ordinary citizen in respect of valid orders of detention.

This privilege is further backed by Right of the House, to receive immediate information of the
arrest, detention, conviction, imprisonment and release of a member. It is the duty of the
committing judge to inform the speaker of the house of any such decision. Further a member
cannot be arrested during a session for 40 days before its commencement and 40 days after its
conclusion.

PRIVELEGES OF THE HOUSE

Publication of Proceedings

The development of the law in this regard owes much to the case of Stockdale v. Hansard11 In
that case a book containing defamatory matter was published under the authority of the House of
Commons leading to a suit for damages. The suit was decreed holding that no privilege is
attached to the publication. This led to the framing of the Parliamentary Papers Act, 1840
granting complete privilege to the publications made under the authority of the House.

7
The Presidents Reference No.1 of 1965 AIR 1965 SC 1186.
8
CoI Article 121.
9
CoI Article 211.
10
1966 AIR 657.
11
(1839) LJ (NS) QB 294.

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Articles 105(1) and (2) reflect the march of the English law on the subject. Common law accords
the defence of qualified privilege to fair and accurate unofficial reports of parliamentary
proceedings, published in a newspaper or elsewhere. In Wason v. Walter12 , Cockburn, C.J.
observed that it was of paramount public and national importance that parliamentary proceedings
should be communicated to public, which has the deepest interest in knowing what passes in
Parliament. The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no
person shall be liable to any proceedings, civil or criminal, in a court in respect of the publication
of a substantially true report of the proceedings in either House of the Parliament, unless it is
proved that the publication is made with malice. Further Article 361-A13 was added to the
Constitution which has further placed this privilege on a higher status.

Power to Punish Contempt

Articles 105 (3) and 194 (3) lay down the Constitutional mandate for the Parliament and State
Legislatures for codification of other privileges by making a law under the relevant legislative
entries in the Union List and the State List. Until the legislative bodies in India make such laws,
the privileges enjoyed by the House of Commons at the commencement of the Constitution
would be applied in India. This brings in the necessary power of the house to punish its own
contempt.

A House of Parliament or Legislature cannot try anyone or any case directly as a court of justice
can, but it can proceed quasi judicially in cases of contempt of its authority or take up motions
concerning its privileges and immunities in order to seek removal of obstructions to the due
performance of its legislative functions.

This power of the house has been very contentious as it brings with it grounds of conflict with
other provisions. There have been controversies surrounding this provision raised in the cases of
M. S. M. Sharma v. Shri Krishna Sinha14 and Gunupati Reddy v. Nafisul Hasan.15 In the latter
case a news item published raised question on the impartiality of judges. A notice was issued to
the editor followed by summons to enforce his presence on the floor of the house. While under
12
(1868) L.R. 4 Q.B. 73, 89.
13
CoI Article 361-A.
14
AIR 1959 SC 395.
15
AIR 1954 SC 636.

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arrest he was not produced before any magistrate for seven days. In a writ of habeas corpus he
claimed violation of his right under article 22 (2). The Court held that the petition succeeded and
the petitioner was entitled for release. From the holding of this case it can be said that power of
the house is subject to atleast article 22(2) of the constitution.

It should be taken note of that while exercising its power to punish its contempt the house is not
vindictive, it only rsorts to such an action to uphold its dignity and respect. Normally when the
accused apologizes the matter is dropped and in very rare cases only an accused is placed under
detention.

PARLIAMENTARY PRIVELEGES AND FUNDAMENTAL RIGHTS

A necessary reference should be made to the position of parliamentary privileges vis--vis

fundamental rights. Since most of the uncodified privileges in India are borrowed from British
House of Commons, certain difficulties have been seen in their application to Indian
constitutional setup. The main reason provided for this conflict is that while in England
supremacy of Parliament is the norm in India supremacy of constitution is the governing
principle

This difference in situation necessarily brings privileges into conflict with other parts of the
constitution like Part III. The question which arises is that weather privileges are controlled by
Fundamental Rights.

The Supreme Court was called upon to decide on the jurisdiction of the High Court to entertain
and deal with the petition filed by Keshav Singh complaining of the violation of his fundamental
rights on account of the action of the assembly.16 The question arose whether the fundamental
rights of the citizen itself could be subject to the parliamentary power of privilege. Supreme
Court opined that the violation of Article 21 on account of exercise of privileges could be
examined by the Court. The Court proceeded on the basis that it cannot look askance if an
allegation of violation of the fundamental rights of a citizen is brought before it on account of the
action of a legislative body and thus held that art. 21 applies to parliamentary priveleges.

16
Special Reference No. 1 of 1964, (1965) 1 SCR 413.

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This view , however, should not be taken to mean that every provision of Part III overrides
parliamentary privileges. In M. S. M. Sharma it was held that in case of any conflict between
Articles 19 (1) (a) and 194 (3), the latter would prevail by applying the rule of harmonious
construction.

CONCLUSION

In light of the above discussion it should be noted that the privileges are important for the
working of Parliament as an institution which is constantly under the scanner of the citizens. In
order for its member to work efficiently and without fear providing them with privileges of the
house is important.

As far as issues arising out of their application are concerned the same can be resolved by
codification of these privileges as such a codification would be done with regards to other
provisions of the constitution and the laws prevailing in India. This would further synchronize
this concept with setup of Indian constitutional machinery.

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