PARLIAMENTARY PRIVILIGES

Parliamentary privilege, as defined by Sir Thomas Erskine May, refers to certain

special rights enjoyed by each House as a part of Parliament and by its members
individually. These rights are essential for them to perform their functions effectively
and go beyond those available to ordinary individuals or bodies.

The Indian Constitution provides for parliamentary privileges under Articles 105 and
194. Article 105 deals with Parliament, while Article 194 applies to State Legislatures.
Both provisions are identical. The Constitution explicitly mentions two privileges: the
freedom of speech in Parliament and State Legislatures and the right to publish their
proceedings.

Before the 44th Amendment, Articles 105(3) and 194(3) stated that until Parliament
or State Legislatures defined their privileges, they would be the same as those of the
House of Commons in England. After the amendment, these provisions were changed
to state that privileges will be defined by Parliament or the State Legislatures as
needed. Until such definitions are made, the privileges will remain as they were
before the 44th Amendment Act of 1978.

Changes by the 44th Amendment (1978)

 Article 105(3) (Parliament) & Article 194(3) (State Legislatures) amended
 Privileges of Parliament/State Legislature and their members:
o Based on what existed at the time of the amendment.
o Can be evolved further by the respective House.
Freedom of Speech in Parliament
 In England, this was established by the Bill of Rights (1689).
 Indian Article 105(1) provides absolute protection for speech inside the House.
 No protection for speech made outside Parliament—if defamatory, the member can
be prosecuted.
Case Laws on Parliamentary Privileges
1. P.V. Narasimha Rao v. State (CBI/SPF) (1998)
o MPs have wide immunity from civil & criminal proceedings for speeches and
votes in Parliament.
o Bribery case ruling: MPs who took bribes and voted were protected under
Article 105(2).
o MPs who gave bribes could be prosecuted.
2. Sita Soren v. Union of India (2024) – Overruled Narasimha Rao Case
o Bribery is NOT protected under Articles 105 & 194.
o MPs/MLAs cannot claim immunity for bribery related to votes or speeches.
o Judiciary can review such cases; bribery is a criminal offense, not a privilege.
 o The House can take disciplinary action, but courts can prosecute bribery
separately.
MPs as Public Servants
 Supreme Court ruled that MPs hold office and perform public duties.
 Under the Prevention of Corruption Act, MPs are considered public servants.
 Criminal cases require approval from Speaker (Lok Sabha) or Chairman (Rajya Sabha).
Restrictions on Freedom of Speech
 Article 121: No discussion in Parliament on a Supreme Court/High Court judge’s
conduct, except in impeachment proceedings.

 udicial Review of Privileges

 Parliamentary privileges must align with the Constitution and can be reviewed
by courts.

 No Immunity for Bribery

 Legislators cannot use Articles 105 & 194 to avoid prosecution for bribery.
 Privileges apply only to legitimate legislative functions, not illegal acts like
bribery.

 Bribery Undermines Legislative Integrity

 Articles 105(2) & 194(2) do not protect bribery since it is a crime.

 Corruption weakens free debate and public trust in governance.

 Courts vs. Parliament’s Authority

 Courts prosecute criminal offences (e.g., bribery).

 Parliament can only take disciplinary action, which is separate from legal
consequences.

 Bribery is a Crime, Regardless of Action Taken

 The offence is complete once a bribe is accepted, even if the legislator

votes independently.

 Flawed Judgment in P.V. Narasimha Rao Case

 This ruling gave immunity to MPs who took bribes and voted as agreed, but
prosecuted those who took bribes but voted freely—a contradiction.

 Article 121 – Restriction on Speech

 MPs cannot discuss judges' conduct in Parliament unless it relates to

impeachment proceedings.
 Freedom of Speech in Parliament

 MPs/MLAs have freedom of speech but must follow House rules (Art. 208,
Lok Sabha Rules 349-356).
 Unparliamentary language or conduct is prohibited.

 Right to Publish Parliamentary Proceedings (Article 105(2))

 MPs cannot be sued for statements or votes in Parliament.

 Official reports published with Parliament’s authority are protected.
 Private publications do not have this immunity (e.g., newspapers).

 Key Cases on Publication of Proceedings

 Surendra v. Nabakrishna: A newspaper editor was held guilty of contempt

for publishing a House statement.
 Parliamentary Proceedings (Protection of Publication) Act, 1977:
o Protects substantially true reports of parliamentary proceedings.
o Does not protect reports of expunged statements.

 Bribery & Immunity of MPs/MLAs

 Sita Soren v. Union of India: MPs/MLAs cannot claim immunity if they take
bribes for voting.
 Overrules past judgments that protected MPs who accepted bribes and
voted as promised.

 Protection for True Reports in Media (Article 361-A, 44th Amendment Act,
1978)

 True reports of Parliament/State Legislature proceedings in newspapers are

immune unless published with malice.
 This protection extends to broadcast media.
 Secret House sittings are not covered.

 Immunity Applies Only to Speech & Voting (State of Kerala v. K. Ajith, 2021)

 MLAs caused damage during a protest in Kerala Assembly (₹2,20,093 loss).

 Courts rejected immunity under Article 194(3) as damage to public
property is not a protected legislative function.

 Legislative Privilege & Breach of Privilege

 Legislative Assemblies have the power to punish acts that:

o Offend their authority.
 o Disobey their commands.
 Breach of privilege = contempt of the House, which falls under the
exclusive jurisdiction of the Speaker.
 Sanction from the Speaker is required before prosecuting an MLA for
contempt.

 Case Overview (Kerala MLAs' Incident)

 MLAs damaged property in the Kerala Assembly.

 Government of Kerala withdrew the case citing public interest (lack of
mens rea, insufficient evidence, and government ownership of property).
 Case was transferred to the C.J.M., who rejected the withdrawal request.
 High Court upheld C.J.M.’s decision, stating that the MLAs’ acts were not
linked to free speech or voting.

 Supreme Court Ruling

 Freedom of Speech under Article 194(2) does not cover criminal acts.
 Only speech & voting are protected, not acts like violence or property
damage.
 The Constitution does not shield MLAs from prosecution under the guise of
protest.
 Video recordings of the incident were ruled not part of Assembly
proceedings, so they could be used as evidence.

Other Privileges of the Legislature

1. Evolution of Legislative Privileges

 Originally, Articles 105(3) & 194(3) granted Parliament and State

Legislatures the same privileges as the British House of Commons (as
of January 26, 1950).
 The 44th Amendment (1978) removed references to the House of
Commons and stated that privileges would be those existing before the
amendment.
 New privileges can only be defined by parliamentary law.

2. Key Privileges of the Legislature

(i) Freedom from Arrest

 MPs & MLAs cannot be arrested in civil cases 40 days before & after a
session.
 No protection from criminal arrest, contempt of court, or preventive
detention.
  Case: K. Anandan Nambiar v. Govt. of Madras
o MPs detained under Defence of India Rules, 1962 challenged their
arrest.
o Held: MPs have no immunity from preventive detention; they are
treated like ordinary citizens.

(ii) Right to Exclude Strangers & Hold Secret Sessions

 Houses can hold secret sessions on important matters.

 However, public transparency is preferred, so secret sessions are rare.

(iii) Right to Prohibit Publication of Proceedings

 Houses can prohibit publication of debates & proceedings.

 Case: Searchlight Case
o Publishing an expunged speech was held to be a breach of privilege.
 Newspapers can publish reports unless they are false or malicious.

(iv) Right to Regulate Internal Proceedings

 Courts cannot interfere in legislative proceedings (Article 122).

 Case: Bradlaugh v. Gossett
o House of Commons barred an MP from entering.
o Held: Courts cannot question internal decisions of Parliament.

(v) Right to Punish for Contempt

 Houses can punish both members & outsiders for contempt.

 Punishments include:
o Suspension, expulsion, or imprisonment.
o Expelled members can contest elections again.
 House can issue a warrant for arrest; courts cannot question it unless it is
unlawful.

3. Office of Parliamentary Secretaries – Unconstitutional

 Case: Bimolangshu Roy v. State of Assam

o Assam created Parliamentary Secretaries despite 91st Amendment
(2003), which capped the Council of Ministers at 15% of the
Legislature.
o Held: The law was unconstitutional, as it violated the cap on executive
appointments.

Unconstitutionality of Parliamentary Secretaries (Bimolangshu Roy Case)

 Assam Government appointed Parliamentary Secretaries with the rank and status of Ministers.
 The Act was challenged as:
o Beyond State Legislature’s competence (violated Article 164(1-A)).
o An attempt to bypass constitutional limits on ministerial strength (91st Amendment).
 Supreme Court ruled the Act unconstitutional, stating:
o State Legislatures lack authority to create such offices under Article 194(3) & Entry 39.
o Legislative privileges do not include power to create new offices.
2. Facebook & Parliamentary Privileges (Mohan v. Legislative Assembly, NCT of Delhi)
 Delhi Assembly’s Committee on Peace & Harmony investigated Facebook's role in spreading hate speech during the
2020 Delhi riots.
 Facebook India’s MD was summoned to appear before the committee.
 Petitioners’ arguments:
o As non-members, they could not be forced to appear.
o Committee had no legislative function over them.
o Right to remain silent was being violated.
 Supreme Court’s ruling:
o Legislative committees can investigate social issues before framing laws.
o Facebook must participate in proceedings, as summons were legally valid.
o No breach of privilege occurred, as no coercive action was taken.
3. Judicial Review of Legislative Privileges (Keshav Singh Case, In re Under Article 143)
 Keshav Singh, a non-member, was jailed for contempt of U.P. Assembly but got bail from the High Court.
 The Assembly accused the judges & lawyer of contempt and issued an arrest warrant.
 President referred the matter to the Supreme Court.
 Supreme Court ruling:
o Legislatures do not have absolute judicial power like the British Parliament.
o High Courts can review legislative privileges under Article 226.
o Detention under an "unspeaking warrant" (without specific reasons) can be challenged in court.
4. Legislative Privileges & Anti-Corruption Investigations (Justice Ripusudan Dayal Case)
 M.P. Vidhan Sabha officials were accused of corruption.
 Lokayukta & Special Police investigated, leading to a claim of "breach of privilege."
 Supreme Court ruled:
o Legislative staff are public servants under anti-corruption laws.
o Investigating corruption is not a breach of privilege.
o House privileges do not override legal accountability.