Parliamentary Privileges: Articles 105 and 194 Explained

Parliamentary privileges are the special rights, immunities and exemptions that the two Houses of Parliament, their committees and their members enjoy so that they can carry on the business of legislation without fear, favour or outside interference. They are not personal perks. The Constitution grants them to the House as an institution, and a member enjoys them only for as long as they remain a member and only in connection with the work of the House. Examiners return to this chapter every year because the whole of it rests on two short Articles, 105 for Parliament and 194 for the State Legislatures, and a paper usually asks either the Article number, the length of the protection from arrest, the name of the committee that examines a complaint, or the case law that has narrowed the immunity.

Constitutional basis: Article 105

Article 105 has four clauses and each one is examinable. Clause (1) guarantees freedom of speech in Parliament, a freedom wider than the ordinary freedom of speech under Article 19(1)(a) because it is not subject to the restrictions in Article 19(2); it is subject only to the Constitution and to the rules and standing orders of the House. Clause (2) says that no member shall be liable to any proceeding in any court in respect of anything said or any vote given in Parliament or its committees, and that no person shall be liable for the publication of any report, paper, vote or proceeding by or under the authority of a House. Clause (3) leaves the remaining privileges to be defined by Parliament by law, and until such a law is made they are those that existed immediately before the coming into force of section 15 of the Forty-fourth Amendment Act, 1978. Parliament has never passed that codifying law, so the privileges remain uncodified to this day. Clause (4) extends the same privileges to persons who have a right to speak in and take part in the proceedings of a House without being members, such as the Attorney General of India and a minister who is a member of the other House.

Collective privileges of the House

• The right to publish its debates and proceedings, and the right to prohibit their publication.
• The right to exclude strangers from the galleries and to hold a secret sitting.
• The right to make rules regulating its own procedure and the conduct of its business.
• The right to punish members and outsiders for breach of privilege or contempt of the House by admonition, reprimand or imprisonment.
• The right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
• Freedom from the interference of the courts: no court may inquire into the proceedings of a House or of its committees.
• The right to hold an inquiry and to summon witnesses and call for papers.

Individual privileges of a member

A member cannot be arrested in a civil case during the continuance of a session and for forty days before it begins and forty days after it ends. This protection is given by the Code of Civil Procedure, not by the Constitution, and it is confined to civil proceedings; a member can be arrested in a criminal case or under a preventive detention law at any time, and the Speaker or Chairman is only informed of the arrest. A member also has freedom of speech inside the House, and cannot be summoned as a witness or compelled to attend a court while the House is sitting, so that the work of the House takes priority.

Articles and provisions at a glance

Breach of privilege and contempt of the House

A breach of privilege is the disregard of any privilege of the House or of a member. Contempt of the House is wider: any act that obstructs the House, a member or an officer in the discharge of duty, or that lowers the dignity of the House, even where no specific privilege has been broken. Any member may raise a question of privilege with the consent of the Speaker in the Lok Sabha or the Chairman in the Rajya Sabha. The presiding officer may deal with it in the House or refer it to the Committee of Privileges, which has fifteen members in the Lok Sabha nominated by the Speaker and ten members in the Rajya Sabha nominated by the Chairman. The House may admonish, reprimand or imprison the offender, and may suspend or expel one of its own members.

Privileges and the courts

The relationship between the House and the judiciary has been settled case by case. In the Searchlight case of 1958 the Supreme Court held that the publication of expunged proceedings is not protected. In the Keshav Singh matter, decided on a Presidential reference in 1964, the Court held that a House cannot be the final judge of the extent of its own privileges and that its orders are open to examination against the fundamental rights. In Raja Ram Pal versus the Hon'ble Speaker in 2007 the Court upheld the expulsion of members in the cash-for-query episode but made clear that the exercise of privilege is open to judicial review on limited grounds. In Sita Soren versus Union of India in 2024 a seven-judge bench held that a legislator who takes a bribe for a vote or a speech is not protected by Article 105(2) or Article 194(2), because the immunity covers only what is essential to the functioning of the House.

Points students confuse

Privileges are not a fundamental right, and Article 105 is not in Part III. They are not available to the President, who is a part of Parliament, and the Attorney General gets them under clause (4) and not as a member. The forty-day protection is not available in criminal matters. The privileges have never been codified, so the words of clause (3) still point backwards to the position before 1978.