- Article 105 of the Constitution of India provides certain privileges to the Members of the Parliament. These Rights are exclusive to the members of both the Houses.
- Earlier, these privileges consisted of only two main privileges that were Freedom of Speech and Right of Publication of its proceedings. Freedom of Speech provided to the Parliamentarians is different from the Freedom of Speech and Expression provided under Article 19 of the Indian Constitution.
- After the 44th amendment of the constitution in 1978, more privileges were defined under the Parliamentary law such as-: Freedom from Arrest, Right to exclude strangers from its proceedings and hold secret meetings, Right to punish members or outsiders for contempt and Right to regulate internal proceedings.
The word 'Privilege' means a special advantage, immunity, or benefit that is not enjoyed by everyone and is reserved for only a group of people or a person. Similarly, while working towards the wholesome development and growth of our nation, the people sitting in Parliament are granted certain privileges. These privileges are known as parliamentary privileges. These privileges can only be claimed by a member of any of the two Houses. However, as soon as a person ends to be a member of the Parliament, the privileges are called off. It is said that these privileges are necessary to exercise constitutional functions. Parliamentary Privileges are given under Article 105 of the Constitution of India.
Sir T.F May, define Parliamentary Privileges as, “Some of the peculiar rights enjoyed by each House collectively as a constituent part of the Parliament and by the members of each House individually, without which they could not discharge their functions and exceed those possessed by other bodies or individuals.”
The Constitutional provisions concerning privileges of the Parliament and the State Legislature are identical. Article 105 and 194 provide privileges for the legislature in the whole of India. Before the 44th amendment of the Constitution in the year 1978, there were only two main privileges that were considered, i) Freedom of Speech and, ii) Right of Publication of its Proceedings
Freedom of Speech
Article 105 (1) of the Constitution of India says that "subject to the provision of this constitution and to the rules and standing orders regulating the procedure of parliament, there shall be freedom of speech in the parliament.
The members of the parliament have been vested with the freedom of speech and expression. As the very essence of our parliamentary democracy is a free and fearless discussion, anything said by them expressing their views and thoughts is exempted from any liability and cannot be put on trial under the court of law. In the case of, P.V Narsimha Rao V. State, AIR 1998, the Supreme Court held that the scope of protection of immunity available to the members of the Parliament is quite wide and is not confined only against judicial proceedings but available to them all civil and criminal proceedings for anything said or any vote given by them in the House of Parliament. The Court also said that the object of protection is to enable the member to speak their mind in Parliament freely and fearlessly.
Restrictions that needs to be followed to claim this privilege
Firstly, anything said while claiming the privilege of freedom of speech in the parliament should be in accordance with the constitutional provisions and subject to the rules and procedures of the parliament, stated under Article 118 of the Constitution of India. Secondly, Article 121 of the Indian Constitution prohibits any discussion in the Parliament concerning the conduct of a judge of a Supreme Court or High Court in the discharge of his/her duties except when a motion is presented in the Parliament for his/her removal. Thirdly, the freedom of speech is also subjected to the rules of procedure of a House-made under Article 203 of the Constitution of India. Fourthly, under rule 349 to 356 of Lok Sabha, the use of unparliamentarily language or unparliamentarily conduct of a person is prohibited. Last but not the least, no privilege can be claimed by the member for anything said outside of the Parliamentary proceedings.
Right of Publication of its Proceedings
Article 105 (2), provides that, no member of parliament shall be liable to any proceedings in any court in respect of anything said or any vote was given by him in Parliament or any committee thereof, and no person shall be so liable in respect of a publication by or under the authority of any House of the Parliament of any report, paper, votes or proceedings.
This basically means that the member of the Parliament has a right to publish the proceedings of the parliament and s/he cannot be punished or held liable for the same. This privilege is not extended to a private person and if such publication is done by a private person then s/he can be held liable. However, in the case of, Surendra V. Nabakrishna, an editor of a newspaper was held guilty in the court for publishing a statement of the House. It was held that there were many advantages to the public, which has the deepest interest in knowing what passes in the Parliament if a true report of parliamentary proceedings is published in a newspaper. Subsequently, the Parliamentary Proceedings (Protection of Publication) Act, 1956 was passed which provided 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 the proceedings of either House of Parliament unless it is proved that publication of such proceeding expressly ordered
to be expunged by the speaker.
The Constitution (44th Amendment) Act, 1978, provides a solid stance to the immunity mentioned above. The new Article 361-A provides that no person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper of a true report to the proceedings of both the Houses of Parliament or of a state legislature unless the publication is proved to have been made with malice.
After the 44th amendment of the constitution, more powers, immunity, and rights were provided to the member of the Houses and the state legislature which could be defined by the Parliamentary law.
Freedom from Arrest
The members of both the Houses of Parliament enjoy freedom from arrest in any civil case forty days before and after the adjournment of the Houses and also when the House is in session. If the detention of any Member of Parliament is made, then the Chairman or the Speaker should be informed by the concerned authorities of the reason for the arrest. However, this privilege does not extend to arrest on criminal proceedings. In the case of, K. Anandan Nambiar V. Chief Secretary, Government of Madras AIR 1966, the Court held that the person detained under valid detention order could claim no special status higher than that of the ordinary citizen and he was much liable to be arrested and determined as any other citizen.
Right to exclude strangers from its proceeding and hold secret meetings
The Members of the House have the right to exclude strangers and hold secret sessions and discuss important matters; however, in modern times secret sessions are only held for exceptional occasions because it is believed that the voter should be kept informed of what their representatives are doing.
Right to punish members or outsider for contempt
The Indian Parliament has the power to punish any person regardless of the fact that whether he is a stranger or a member of the House. Each House has the power to punish its members for, 'contempt or breach' of privileges. Such members may be expelled or suspended from the House or may even be sentenced to jail.
Right to regulate internal proceedings
The House has an exclusive right to regulate its own internal proceedings and to adjudicate upon the matters. The Courts will not interfere with what takes place inside the House. In the case of, Bradlaugh V. Gossett, 1824, the Court held that the House of Commons was not subjected to the control of the court in matters related to its internal proceedings.
Privileges and Fundamental Rights
Article 19 (1) (a), guarantees the Freedom of Speech and expression to every citizen of India but these rights are not absolute and are subject to reasonable restrictions however the right under Article 105 is independent and is not subjected to restrictions provided under Article 19 (2). Thus, it is clear that freedom of speech under Article 105 is different from Freedom of Speech under Article 19 (1) of the Constitution of India.
Members of the Houses of Parliament are indeed provided with certain privileges but with these privileges come greater responsibility and duty towards the nation and its people. As it is said by many that these Parliamentary Privileges are essential for the working of the Parliament. It is believed that by providing these privileges, the Parliament will function in a disciplined and undisrupted manner. These Privileges hold an internal as well as external aspect; firstly they protect against the outside interference which would disrupt the freedom to conduct its proceedings, secondly, they also impose responsibilities and duties on its members, restraining them from conduct that would result in an abuse of these privileges. I believe that these rights are very important for a Member of Parliament. A Parliamentarian is someone who represents the people and this person should have a sense of security that s/he can openly, without any hesitation can put their point forward and that they won't be unnecessarily called out for the same. Therefore, I believe that providing these rights to all the members was a very good step that was taken by our legislature.