Parliamentary privilege is the sum of the special rights, immunities and exemptions enjoyed by each House of the legislature collectively, and by its members individually, without which they could not discharge their functions. Article 105 deals with Parliament and Art.194 in identical terms with the State Legislatures.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.105(1) | Freedom of speech | There shall be freedom of speech in Parliament, subject to the Constitution and to the rules of procedure |
| Art.105(2) | Immunity from proceedings | No member is liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee, and no person is liable in respect of publication by or under the authority of a House |
| Art.105(3) | Other privileges | Such as may be defined by Parliament by law, and until so defined, those enjoyed immediately before the coming into force of Section 15 of the 44th Amendment Act, 1978 |
| Art.105(4) | Extension | Applies to persons entitled to speak in or take part in the proceedings, such as Ministers who are not members and the Attorney-General |
| Art.122 | Courts not to inquire into proceedings | Validity of proceedings not to be called in question on the ground of any irregularity of procedure |
| Art.194 and Art.212 | State counterparts | Identical provisions for the State Legislatures |
| Art.361A | Publication of proceedings | Protection for substantially true reports of proceedings, unless the publication is proved to have been made with malice |
| Code of Civil Procedure, 1908 S.135A | Freedom from arrest | Exemption from arrest in civil process during a session and forty days before and after |
The significance of the 44th Amendment: Article 105(3) as originally enacted said that until Parliament defined its privileges by law, they would be those of the House of Commons of the United Kingdom Parliament. The 44th Amendment Act, 1978 removed that express reference and substituted the formula describing the privileges as those enjoyed immediately before the amendment came into force. The change is one of drafting rather than of substance: the content of the privileges is unaltered, but the Constitution no longer refers on its face to a foreign legislature. Parliament has still not enacted a comprehensive law defining privileges, so the position continues to rest on this transitional formula.
Classification of Privileges
| Collective privileges of the House | Individual privileges of a member |
|---|---|
| Right to publish its proceedings and to prohibit publication | Freedom of speech in the House (Art.105(1)) |
| Right to exclude strangers from its proceedings and to hold secret sittings | Immunity from proceedings in respect of anything said or any vote given (Art.105(2)) |
| Right to punish members and outsiders for breach of privilege or contempt | Freedom from arrest in civil cases during a session and forty days before and after |
| Right to regulate its own internal proceedings | Exemption from attendance as a witness or juror while the House is sitting |
| Right to receive immediate information of the arrest, detention or release of a member | Right to refuse to disclose what was said in a secret sitting |
| Right to institute inquiries and compel the attendance of witnesses |
What privilege does not cover: There is no immunity from arrest in a criminal matter or under a law of preventive detention. There is no privilege to break the law outside the House. There is no privilege of freedom of speech outside the House, where a member stands in the same position as any citizen. And, since 2024, there is no immunity in respect of the acceptance of a bribe.
Facts: A newspaper editor published the whole of a speech made in the Bihar Legislative Assembly, including portions the Speaker had ordered to be expunged. The Assembly's Committee on Privileges initiated action against him, and he claimed the protection of his fundamental right to freedom of speech and expression.
Issue: Whether the privilege of the House to prohibit publication of its proceedings prevails over the fundamental right in Art.19(1)(a).
Held: The privilege prevailed. The privileges conferred by Art.194(3) are themselves a part of the Constitution and are not subject to Art.19(1)(a). The House was entitled to prohibit publication of expunged portions and to proceed for contempt. The Court indicated, however, that privilege would not override Art.21, so that a person could not be deprived of personal liberty except by procedure established by law.
Relevance: The foundational case on the relationship between privilege and fundamental rights. State the resulting formula: privilege prevails over Art.19(1)(a) but yields to Art.21.
Facts: The Uttar Pradesh Legislative Assembly committed Keshav Singh to prison for contempt of the House. Through an advocate he moved the High Court under Art.226, and two Judges granted him interim bail. The Assembly thereupon resolved that the two Judges, the advocate and Keshav Singh be brought before it in custody. The President made a reference to the Supreme Court under Art.143.
Issue: Whether a House may punish for contempt a Judge who has exercised judicial functions, and whether the courts may examine a claim of privilege.
Held: The House has power to punish for contempt, but that power is not beyond examination. A House of the Legislature is not a court of record, and its general warrant does not enjoy the immunity from scrutiny that attaches to a warrant of the House of Commons. A person committed for contempt may invoke Art.226, and the High Court may inquire whether the privilege claimed exists. The Assembly had no power to take action against Judges for the discharge of their judicial duties.
Relevance: Establishes that the existence and extent of a privilege is a justiciable question for the courts, even though its exercise within the House is not. The leading case on the conflict between privilege and judicial power.
Facts: Members of both Houses were shown accepting money in return for raising questions in Parliament. After inquiry, the Houses expelled them. They contended that no power of expulsion existed, expulsion not being among the penalties mentioned in the Constitution.
Issue: Whether Parliament possesses the power to expel a member for contempt, and how far such a decision is open to judicial review.
Held: The power exists. Art.105(3) carries with it the inherent power of the House to punish for contempt, and expulsion is within it. But the exercise of that power is subject to judicial review, though on limited grounds: want of jurisdiction, violation of a fundamental right or other constitutional provision, gross illegality, mala fides, or a violation of natural justice. Art.122 excludes review only for irregularity of procedure, not for substantive illegality.
Relevance: The leading modern authority on the width of Art.105(3) and the correspondingly narrow reading of Art.122. Use it to state the grounds of review precisely.
Facts: A member of a State Legislative Assembly was alleged to have accepted a bribe to vote for a particular candidate in a Council of States election. She claimed immunity under Art.194(2) as the alleged act related to a vote given in the House. The question required reconsideration of P V Narasimha Rao v State (1998), in which a majority had held that a legislator who accepted a bribe and voted accordingly was immune, while one who took the bribe but did not vote was not.
Issue: Whether the immunity in respect of "anything said or any vote given" extends to the acceptance of a bribe to speak or vote in a particular manner.
Held: A Bench of seven Judges overruled P V Narasimha Rao. Bribery is not protected by Art.105(2) or Art.194(2). The offence is complete when the illegal gratification is accepted, independently of whether the legislator subsequently speaks or votes as agreed. The immunity attaches only to acts necessary to the discharge of legislative functions, and taking a bribe is not such an act.
Relevance: The current law. Note the anomaly the Court removed: on the earlier view, the legislator who took the money and honoured the bargain escaped while the one who took it and did not was prosecuted.
Illustrations
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Defamatory speech in the House: A member makes a defamatory statement about a private citizen during a debate. The citizen cannot sue, because Art.105(2) bars any proceedings in any court in respect of anything said in Parliament.
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The same speech repeated outside: The member repeats the statement at a press conference. Privilege does not apply, since freedom of speech under Art.105(1) is confined to speech in Parliament. The member is liable in defamation like anyone else.
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Publication of expunged proceedings: A newspaper prints portions of a speech that the Speaker has ordered expunged. Applying M S M Sharma (1959), the House may proceed for contempt, and the editor cannot resist on the basis of Art.19(1)(a).
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Faithful report of proceedings: A newspaper publishes a substantially true report of proceedings without malice. Art.361A protects the publication, so no action lies in respect of it.
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Arrest in a civil matter: A member is to be arrested in execution of a money decree three weeks before a session begins. The arrest is barred by S.135A of the Code of Civil Procedure, which protects the member during the session and for forty days before and after.
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Arrest in a criminal matter: The same member is arrested on a charge of cheating. Privilege affords no protection, since there is no immunity from arrest in criminal cases; the House is only entitled to be informed.
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Expulsion for taking money: A member accepts money for asking a question and is expelled. Applying Raja Ram Pal (2007), the power to expel exists under Art.105(3), and the member may challenge the expulsion only on grounds such as denial of natural justice or mala fides, not on the ground that the House misappreciated evidence.
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Bribery is not immune: A member accepts money to vote in a particular way in a Council of States election. Applying Sita Soren (2024), no immunity arises under Art.194(2), and the offence is complete on acceptance whether or not the member votes as agreed.
Recall Check
- State the four sub-clauses of Art.105 and the effect of each.
- Does privilege prevail over Art.19(1)(a), and does it prevail over Art.21?
- On what limited grounds may the exercise of the power to punish for contempt be reviewed?
Key Cases
M S M Sharma v Sri Krishna Sinha (1959) MSM Sharma v Sri Krishna Sinha 1959
Issue: Whether the House's privilege to prohibit publication of its proceedings prevails over Art.19(1)(a).
Rule: Privileges under Art.194(3) are part of the Constitution and are not subject to Art.19(1)(a), though they yield to Art.21.
Held: The House could proceed for contempt against the editor who published expunged portions of a speech.
Special Reference No. 1 of 1964 (Keshav Singh's case) Special Reference No 1 of 1964
Issue: Whether a House may punish a Judge for exercising judicial functions, and whether a claim of privilege is justiciable.
Rule: A House is not a court of record; the existence and extent of a privilege is for the courts to determine, and Art.226 is available to a person committed for contempt.
Held: The Assembly had no power to proceed against the Judges, and the High Court was competent to entertain Keshav Singh's petition.
Raja Ram Pal v Hon'ble Speaker, Lok Sabha (2007) Raja Ram Pal v Speaker Lok Sabha 2007
Issue: Whether Parliament can expel a member for contempt, and how far the decision is reviewable.
Rule: Art.105(3) carries an inherent power to punish for contempt, including expulsion, but its exercise is reviewable for illegality, unconstitutionality, mala fides and breach of natural justice.
Held: The expulsions were upheld, Art.122 barring review only for irregularity of procedure.
Sita Soren v Union of India (2024) Sita Soren v Union of India 2024
Issue: Whether the immunity for anything said or any vote given covers the acceptance of a bribe.
Rule: Immunity attaches only to acts necessary to the discharge of legislative functions; bribery is not such an act and the offence is complete on acceptance.
Held: P V Narasimha Rao (1998) overruled; no immunity under Art.105(2) or Art.194(2) for bribery.
Distinctions
| Basis | Breach of Privilege | Contempt of the House |
|---|---|---|
| Nature | Infringement of a specific privilege of the House or a member | Any act or omission that obstructs the House or its members in the discharge of their functions |
| Scope | Narrower, tied to an identified privilege | Wider, and does not require breach of any particular privilege |
| Relationship | Every breach of privilege is a contempt | Not every contempt is a breach of privilege |
| Example | Publishing expunged proceedings | Disobeying a summons of a committee, or misconduct in the presence of the House |
| Basis | Privilege and Art.19(1)(a) | Privilege and Art.21 |
|---|---|---|
| Outcome | Privilege prevails | Art.21 prevails |
| Authority | M S M Sharma v Sri Krishna Sinha (1959) | Indicated in M S M Sharma and applied in Keshav Singh's case |
| Reason | Privilege is itself a constitutional provision of equal status | Personal liberty may be taken away only by procedure established by law |
Flashcards
What does Art.105(1) confer?
Freedom of speech in Parliament, subject to the Constitution and to the rules and standing orders regulating procedure.
What is the effect of Art.105(2)?
No member is liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee, and no person is liable in respect of publication under the authority of a House.
What does Art.105(3) provide, and what did the 44th Amendment change?
Other privileges are those Parliament defines by law, and until then those enjoyed immediately before Section 15 of the 44th Amendment Act, 1978 came into force. The amendment removed the express reference to the House of Commons.
Has Parliament enacted a law defining its privileges?
No. The position continues to rest on the transitional formula in Art.105(3).
Does privilege override the fundamental right to freedom of speech?
Yes. M S M Sharma (1959) held that privilege prevails over Art.19(1)(a).
Does privilege override the right to life and personal liberty?
No. Art.21 prevails over privilege.
Is a House of the legislature a court of record?
No. Keshav Singh's case (1964) so held, which is why its general warrant is open to examination.
Can Parliament expel a member?
Yes. Raja Ram Pal (2007) held the power inheres in Art.105(3), subject to limited judicial review.
On what grounds may the House's exercise of contempt power be reviewed?
Want of jurisdiction, violation of a fundamental right or constitutional provision, gross illegality, mala fides, and breach of natural justice.
Is a legislator who accepts a bribe to vote protected by privilege?
No. Sita Soren v Union of India (2024) overruled P V Narasimha Rao and held bribery is not covered.
Is there immunity from arrest in criminal cases?
No. The exemption is confined to civil process, during a session and forty days before and after.
What does Art.361A protect?
Substantially true reports of the proceedings of Parliament or a State Legislature, unless the publication is proved to have been made with malice.
Exam Scenario
Problem: During a debate, Ravi, a member of the Legislative Assembly, alleges that Sunil, a private contractor, paid bribes to officials. The Speaker orders part of the speech expunged. A newspaper nevertheless publishes the expunged part in full, and the Assembly issues a notice of breach of privilege to its editor. Ravi repeats the allegation the next day on a television programme. Separately, it emerges that Ravi had himself accepted money from a rival contractor to make the allegation, and the Assembly resolves to expel him without giving him a hearing. Ravi is also arrested in execution of a money decree ten days before the session. Advise all parties.
Step 1: Separate speech in the House from speech outside it
| Where the allegation was made | Provision | Ravi's position |
|---|---|---|
| In the Assembly during the debate | Art.194(2) | Absolute immunity. No proceedings lie in any court in respect of anything said in the House |
| On the television programme the next day | Art.194(1) | No immunity. Freedom of speech is confined to speech in the House |
Sunil has no remedy in defamation for the statement in the House. The immunity does not depend on the truth of the statement or on the member's good faith.
For the broadcast Ravi is liable in defamation, and possibly in criminal law, like any citizen.
Step 2: Test the newspaper's position on the expunged matter
Take the editor's defences in this order:
- Art.19(1)(a). Apply M S M Sharma v Sri Krishna Sinha (1959). The House has the privilege to prohibit publication of expunged proceedings, and that privilege prevails over Art.19(1)(a), so the editor cannot resist the notice on that basis.
- Art.361A. It protects reports of proceedings, and expunged matter has ceased to form part of the proceedings, so it does not assist.
- Art.226. If the House were to order the editor's detention, Art.21 would apply, and under Keshav Singh's case (1964) he could move the High Court to test whether the privilege claimed exists.
Step 3: Attack the expulsion for want of a hearing
Apply Raja Ram Pal v Speaker, Lok Sabha (2007). The House has an inherent power to expel under Art.194(3), so the resolution is not void for want of power.
But the exercise is reviewable for breach of natural justice, and expulsion without any hearing is precisely such a breach. Art.212 bars review only for irregularity of procedure, not for substantive illegality.
Ravi has a good challenge on this ground.
Step 4: Deal with the bribe
Apply Sita Soren v Union of India (2024). Ravi enjoys no immunity, the offence being complete on acceptance of the gratification and independent of the speech he afterwards made.
Step 5: Set aside the civil arrest
Apply S.135A of the Code of Civil Procedure. The arrest is in civil execution and falls within the forty day window before the session, so it is barred and Ravi is entitled to release.
The immunity stops at the door of the House. Art.194(1) covers speech in the House only, so the television repetition attracts no protection at all.
Art.194(2) is absolute. It does not depend on the truth of the statement or on the member's good faith, so Sunil has no remedy for the speech itself.
Art.361A does not save the editor. It protects reports of proceedings, and expunged matter is no longer part of the proceedings.
Power to expel and validity of the expulsion are different questions. Raja Ram Pal upholds the power under Art.194(3) while allowing review for breach of natural justice.
Art.212 is narrower than it looks. It bars review for irregularity of procedure, not for substantive illegality.
Sita Soren reverses P V Narasimha Rao. Under P V Narasimha Rao (1998) Ravi might have claimed protection because he did in fact speak as agreed. That is no longer the law.
The arrest privilege is civil only. S.135A covers civil execution within forty days before the session, so check both the nature of the arrest and the window.
Conclusion. Sunil has no remedy for the House speech but does for the broadcast. The editor is exposed to the privilege notice, the expulsion is vulnerable for denial of hearing, the bribery prosecution may proceed, and the civil arrest must be set aside.
See Also
- Powers and Functions of Parliament : the legislative functions these privileges exist to protect, and the reach of Art.122.
- Anti-Defection Law : the other principal head on which a member may lose his seat, and the parallel question of the Speaker's reviewability.
- Independence of Judiciary and Judicial Accountability : the counterpart protections for judges, and the clash of privilege with judicial power in Keshav Singh's case.