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CONSTITUTIONAL LAW PROJECT

On

Topic: “PARLIAMENTARY PRIVILEGES”

SUBMITTED TO : - DR. AYAZ AHMAD

SUBMITTED BY:

STUDENT 1 DETAILS: STUDENT 2 DETAILS:

NAME: AKSHI JAIN NAME: ANAMIKA BAID

BATCH: 2020-25 BATCH: 2020-25

SECTION: A SECTION: A
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TABLE OF CONTENT

CONTENTS

1. Abstract 4
2. Introduction 4
3. Types Of Parliamentary Privileges 5
4. Punishments Prescribed for Breach of Privileges or Contempt of the House 10
5. What Constitutes Parliamentary Breach or Contempt of the House? 11
6. Codification of the Parliamentary Privileges 12
7. Judicial Review of the Parliamentary Privileges 13
8. Privileges and the British Constitution 14
9. Relevant Provisions Concerning Privileges in the Indian Constitution 14
10. Parliamentary Privileges and the Principle of Natural Justice 16
11. Privileges and Fundamental Rights 17
12. Privileges and the Courts 18
13. Conclusion 20
14. Bibliography 22
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TABLE OF CASES

CASES

Raja Ram Pal v Hon’ble Speaker 4

Tej Kiran Jain v Sanjeeva Reddy 6
P.V. Narsimha Rao v. State 6
K. Anandan Nambiar v. Chief Secretary, Governor of Madras 8
Wason v. Walter 8
Pandit M.S.M Sharma v. Shri Krishna Sinha 9
Keshav Singh’s case 13
Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly 16
Gunupati Keshavram Reddi v. Nafisul Hasan 17
Hardwari Lal v. The Election Commission of India 20
M.P.V. Sundaramier & Co. v. State of Andhra Pradesh 21

PARLIAMENTARY PRIVILEGES
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ABSTRACT
The project talks about the Parliamentary Privileges under Constitutional Law. The term
“privileges” is sometimes used as “unfair advantages” given to members of Parliament by the
Constitution of India. The project tries to cover all the aspects of Parliamentary Privileges
and also tries to find out whether these privileges should be codified or not through reading
out a number of judgements decided by the Hon’ble Courts of our country. Parliamentary
privileges are defined in Article 105 of the Indian Constitution. The members of Parliament
are exempted from any civil or criminal liability for any statement made or act done in the
course of their duties. The privileges are claimed only when the person is a member of the
house. As soon as he ends to be a member, the privileges are said to be called off. The
privileges given to the members are necessary for exercising constitutional functions. These
privileges are essential so that the proceedings and functions can be made in a disciplined and
undisturbed manner.

INTRODUCTION
As Dicey1 says, “it is harder to define than the extent of the indefinite powers or rights
possessed by either House of Parliament under the head of privilege or law and custom of
Parliament”.  As per the Oxford dictionary 2 the term privilege refers to the “special right,
advantage or immunity to the particular person. It is a special benefit or honour”.

Hence it can be inferred that the term “privileges” refers to the special rights and advantages
that are enjoyed by the members of parliament over the citizen of India. Various authors
throughout the world have interpreted the word privileges according to the norms and
scenario exists in their respective country.

In the case of Raja Ram Pal v Hon’ble speaker 3, the court defined the term privilege as “A
special right, advantage or benefit conferred on a particular person. It is a particular
advantage or favour granted to one person as against another to do certain acts”. Inherent in
the term is the idea of something, apart and distinct from a common right which is enjoyed by
all persons and connotes some sort of special grant by the sovereign.

The word grant by sovereign refers the privilege is conferred to them by the higher authority
and the privilege an immunity is derived from them only to such members. As inspired by the
1
Preeti Singh, Parliamentary Privileges, https://www.lawctopus.com/academike/parliamentary-privileges/
2
10th Edition, Oxford dictionary, 1138
3
Raja Ram Pal v Hon’ble speaker, AIR 2007 SC (Supp) 1448
 5

privileges of the house of the commons. The privileges of House of Commons have been
defined as “the sum of the fundamental rights of the house and of its individual members as
against the prerogative of the crown, the authority of the ordinary court of law and the special
rights of the House of Lords”.4

Sir Erskin May5 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”.

TYPES OF PARLIAMENTARY PRIVILEGES

There are two kinds of privileges enjoyed by the members of parliament: 1. Individually and
2. Members Collectively as part of Parliament. Let us discuss these in detail.

Parliamentary Privileges Enjoyed by the Members Individually

1. Freedom of Speech in 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 are exempted from any liability
and cannot be tried in the court of law.

44
Rachel Macreadie, An Introduction to Parliamentary Privilege,
https://www.researchgate.net/publication/280735124_An_Introduction_to_Parliamentary_Privilege
5
16th Edition., Sir Thomas Erskine May, Parliamentary Practice, Chapter III, p.42.
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Sir John Elito’s Case - The House of Lords recognised that the court should never have
assumed jurisdiction over the charge of seditious speeches, which was “fully answered by the
plea of privilege” and reversed the decision of Court of King’s bench in which they have
convicted Sir John for delivering a seditious speech in House of Common.

The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy6 held that “once it is
proved that parliament was sitting and its business was being transacted, anything said during
the course of that business was immune from proceeding in any court”.

The freedom of speech and expression, guaranteed to a citizen under Article 19(2) 7
is
different from the freedom of speech and expression provided to a member of the parliament.
It has been guaranteed under Article 105(1) 8 of the Indian constitution. But the freedom is
subject to rules and orders which regulates the proceedings of the parliament.

This right is given even to non-members who have a right to speak in the house. Example,
attorney general of India. So that, there is fearless participation of the members in the debate
and every member can put forward his thought without any fear or favour.

In a much-publicized matter involving former Prime Minister, several ministers, Members of

Parliament and others a divided Court, in P.V. Narsimha Rao v. State9 (JMM Bribery
Case) has held that the privilege of immunity from courts proceedings in Article 105 (2)
extends even to bribes taken by the Members of Parliament for the purpose of voting in a
particular manner in Parliament.

The majority (3 judges) of the Apex Court did not agree with the minority (2 judges) and
explained that expression “in respect of” in Article 105(2) must be given a wide meaning so
as to comprehend an act having a nexus or connection with the speech made or a vote given
by a member in parliament or any committee thereof. So interpreted, it would include within
its ambit, acceptance of a bribe by a member in order to make a speech or to cast his vote in
parliament or any committee thereof in a particular manner.

Some limitations are also present which should be followed in order to claim immunity

6
AIR 1970 SC 1573.
7
Ankit Jain, Indian Parliament, https://www.lawkidunya.com/
8
Jayant Bhatt, An Analysis of Parliamentary Privileges in India,
https://www.legalserviceindia.com/articles/parliamentary001.htm
9
AIR 1998 SC 2120
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 Freedom of speech should be in accordance with the constitutional provisions and

subject to rules and procedures of the parliament, stated under Article 118 of the
Constitution.
 Under Article 121 10
of the Constitution, the members of the parliament are restricted
from discussing the conduct of the judges of the Supreme Court and the High Court.
But, even if this happens, it is the matter of the parliament and the court cannot
interfere.
 No privilege and immunity can be claimed by the member for anything which is said
outside the proceedings of the house.

2. Freedom from Arrest

The members enjoy freedom from arrest in any civil case for 40 days before and after the
adjournment of the house and also when the house is in session. 11 No member can be arrested
from the limits of the parliament without the permission of the house to which he/she belongs
so that there is no hindrance in performing their duties.

If the detention of any member of the parliament is made, the chairman or the speaker should
be informed by the concerned authority about the reason for the arrest. But a member can be
arrested outside the limits of the house on criminal charges against him under The Preventive
Detention act, The Essential Services Maintenance Act (ESMA), The National Security Act
(NSA) or any such act.

This privilege does not extend to arrests or imprisonment on a criminal charge 12 or contempt
of court13 or to preventive detention14. However, in case a member is so arrested, Rule 261 of
Lok Sabha lays down a duty of the detaining authority to communicate to the house to which
member belongs, the reasons for arrest or detention, the time of arrest, the place where he is
detained or imprisoned and the period for which the member is detained or arrested. It has
been held in K. Anandan Nambiar v. Chief Secretary, Governor of Madras 15 , that matters
of Parliament do not enjoy any special status as compared to an ordinary citizen in respect of
valid orders of detention.

10
Harsh Agrawal, Parliamentary Privileges and Immunities, https://blog.ipleaders.in/parliamentary-privileges-
india/
11
Bare Acts, Civil Procedure Code, 1908, Section 135-A
12
Kalyan Chandra Sarkar v. Rajesh Ranjan, 2005 (3) SC 307
13
16th Edition., Sir Thomas Erskine May, Parliamentary Practice, Chapter III, p.82
14
Smt. Indira Gandhi v Raj Narain, AIR 1975 SC 2299.
15
AIR 1966 SC 657.
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3. Freedom from Appearing as a Witness

The members of the parliament enjoy special privileges and are exempted from attending
court as a witness. They are given complete liberty to attend the house and perform their
duties without any interference from the court.

4. Power to Make Rules of Procedure

Under Art. 118 Each House of Parliament has the power to make rules and regulates its
proceeding and conduct of its business. Both Houses had enacted their rule book which is
known as “Rules of Procedure and Conduct of business” in Lok Sabha and “Rules of
Procedure and Conduct of Business” in the Council of States respectively.

Parliamentary Privileges Enjoyed by the Members Collectively as Part of Parliament

1. Right to Prohibit the Publication of Proceedings
As stated in Article 105(2) 16 of the Constitution, no person shall be held liable for publishing
any reports, discussions etc of the house under the authority of the member of the house. For
paramount and national importance, it is essential that the proceedings should be
communicated to the public to aware them about what is going on in the parliament.

But, any partial report of detached part of proceedings or any publication made with malice
intention is disentitled for the protection. Protection is only granted if it reflects the true
proceedings of the house. If any expunged proceedings are published or any
misrepresentation or misreporting is found, it is held to be the breach of the privilege and
contempt of the house.

In Wason v. Walter17, Cockburn, C.J. observed that it was of paramount public and national
importance that parliamentary proceedings should be communicated to the public, which has
the deepest interest in knowing what passes in Parliament. But a partial report or a report of
detached part of proceedings published with intent to injure individuals will be disentitled to
protection. The same is the law in India.

In Pandit M.S.M Sharma v. Shri Krishna Sinha 18, popularly known as Searchlight
case proceedings for the breach of privilege had been started against an editor of a newspaper

16
Akhtar Ali Khan, Power, Privileges and Immunities of Parliament, Vol. 4, The Indian Journal of Political Science,
pp. 309
17
Wason v. Walter, (1868) LR 4 QB 73.
18
Pandit M.S.M Sharma v. Shri Krishna Sinha AIR 1959 SC 395.
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for publishing those parts of the speech of a member delivered in Bihar legislative assembly
which the speaker had ordered to be expunged from the proceedings of the Assembly.

The editor in a writ petition under Article 32 contended that the House of Commons had no
privilege to prohibit either the publication of the publicly seen and heard proceedings that
took place in the House or of that part of the proceedings which had been directed to be
expunged. The Supreme Court by a majority of four to one rejected the contention of the
petitioner.

Das C.J., who delivered the majority judgment, observed that “House of Commons had at the
commencement of our Constitution the power or privilege of prohibiting the publication of
even a true and faithful report of the debates or proceedings that took place within the
House”19. A fortiori House had at the relevant time the power or privilege of prohibiting the
publication of an inaccurate version of such debates or proceedings. The Court said that the
effect in law of the order of the Speaker to expunge a portion of the speech of member might
be as if that portion had not been spoken.

The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that “no person
shall be liable to any proceedings, civil or criminal, in any court in respect of the publication
of a substantially true report of the proceedings of either House of the Parliament 20, unless it
is proved that the publication is made with malice.” The Act was repealed during the 1975
Emergency.

2. Right to Exclude Strangers

The members of the house have the power and right to exclude strangers who are not
members of the house from the proceedings. This right is very essential for securing free and
fair discussion in the house. If any breach is reported then the punishment in the form of
admonition, reprimand, or imprisonment can be given.

Rule 248 of Lok Sabha give the Chair the power21, whenever it thinks fit, of ordering the
withdrawal of strangers from any part of the House and when the House sits in a secret
session no stranger is permitted to be present in the chamber, lobby or galleries. 22 The only
exceptions are the members of the Council of States and the persons authorized by the
Speaker.
19
8th ed, M.P. Jain, Constitutional Law 126,
20
13th edition. V.N. Shukla, Constitution of India 128,
21
Constitution of India (Bare Acts)
22
,
 Ram Jethmalani, DS Chopra Parliamentary Privileges Law and Practice, p. 316
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3. Right to Punish Members and Outsiders for Breach of its Privilege

The Indian Parliament has the power to punish any person whether strangers or any member
of the house for any breach or contempt of the house. When any breach is committed by the
member of the house, he/she is expelled from the house.

This right has been defined as ‘keystone of parliamentary privilege’ because, without this
power, the house can suffer contempt and breach and it is very necessary to safeguard
house’s authority and discharge its functions. This power has also been upheld by the
judiciary in most of the cases. The house can put in custody any person or member for
contempt till the period the house is in session.

4. Right to Regulate Internal Affairs of the House

Each house has a right to regulate its proceedings in the way it deems fit and proper. Each
house has its own jurisdiction over the house and no authority from the other house can
interfere in regulation of its internal proceedings. Under Article 118 23 of the Constitution, the
houses have been empowered to conduct its regulation for proceedings and cannot be
challenged in the court of law on the ground that the house is not in accordance with the rules
made under Article 118. The Supreme Court has also held that this is general provision and
the rule is not binding upon the house. They can deviate or change the rule anytime
accordingly.

To strengthen this right, Article 122 24

(Article 212 in case of State Legislature) expressly
provides that the validity of any proceedings shall not be called in question on the ground of
any alleged irregularity of procedure25 and no officer or member of Parliament in whom
powers are vested by or under the Constitution for regulating the procedure or the conduct of
business or for maintaining order in Parliament shall be subject to the jurisdiction of any
court in respect of the exercise by him of those powers.

PUNISHMENTS PRESCRIBED FOR BREACH OF PRIVILEGES OR CONTEMPT

OF THE HOUSE

23
8th ed, M.P. Jain, Constitutional Law 126,
24
Constitution of India (Bare Acts)
25
In Re Under Article 143, AIR 1965 SC 745.
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1. Imprisonment: If the breach committed is of a grave nature the, punishment can be

given in the form of the imprisonment of any member or person.
2. Imposing Fine: If in the view of the parliament, the breach or contempt committed
is of economic offence and any pecuniary gain has been made from the breach
then, the parliament can impose fine on the person.

3. Prosecuting the Offenders: The parliament can also prosecute the one committing
the breach.

4. Punishment Given to its Own Members: If any contempt is committed by the

members of the parliament, then he is to be punished by the house itself which
could also result in the suspension of the member from the house.

WHAT CONSTITUTES PARLIAMENTARY BREACH OR CONTEMPT OF THE

HOUSE?
There is no codification to clearly state that what action constitutes a breach and what
punishment it entails. Although, there are various acts which are treated by the house as the
contempt. It is generally based on the actions which tend to obstruct the proceedings of the
house and creates a disturbance for the members. Some of them are briefly discussed.

A. Giving any Misleading Statement in the House

The acts which are done solely with the purpose to mislead are considered as the contempt of
the house. If the statement is made by a person who believes the information to be true then,
there is no breach involved. It has to be proved that the statement was made with an intention
to mislead the house.

B. Disturbance by the Outsiders

Any disruption created by shouting slogans or throwing leaflets etc. with the purpose of
disturbing the proceedings of the court is regarded as a major contempt by the house. The
person is imprisoned by the house for a specified period of time or a warning is given
depending on the seriousness of the case.

C. Any Kind of Assault on the Members

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Here, the privilege is available when the member is performing his duties. An assault done by
any person on the member of the parliament in the course of performing his duties is treated
as contempt of the house.

D. Writings or Speeches About the Character of the Member

Any speech published or libel made against the character of the member is regarded as the
contempt of the house. These are regarded to be necessary because it affects the performance
and function of the member by reducing the respect for him. So, clearly, any attack on the
privilege of the members by any means is considered as a breach of the privilege and the
parliament can take action regarding the same.

E. Freedom of Press and Parliamentary Privileges

The parliamentary privileges restrict the freedom of the press, which is a fundamental right.
Caution to a great extent has to be taken by the press while publishing any report of the
proceedings of the parliament or the conduct of any member. There are instances where the
press can be held liable for the contempt of the house. They are:

1. Publishing any matter concerning the character of any member of the parliament

2. Any pre-mature publication of the proceedings

3. Misreporting or misrepresenting the proceeding of the house

4. Publishing the expunged portion of the proceedings

In spite of the fact that the freedom of the press is subject to the parliamentary privileges,
certain enactments have been made for the protection of the freedom of the press. If the
fundamental right is being violated, there is no meaning of democracy. The freedom of the
press has to be protected because we need to be informed about the acts of our
representatives. Parliamentary Proceedings (protection of the publication) Act, 1977 26

protects the rights of the press under certain given circumstances. They are:

1. The reports of the proceedings are substantially true.

2. The report is made without malice.
3. The report is made for public good.
4. The report should not constitute any secret meeting of the house.

CODIFICATION OF THE PARLIAMENTARY PRIVILEGES

26
13th edition. V.N. Shukla, Constitution of India 128,
 13

Our Indian parliament enjoys supreme powers as being a member of the parliament. There is
also misuse of the privileges given to them because they do not have many restrictions on the
rights. They have the power to be the judge of their own proceedings, regulate their
proceedings, what constitutes the breach and what punishment should be given for the
breach, are solely decided by them.

The power vested in them is too wide as compared to the fundamental rights vested in the
citizens. With no codification of the privileges, they have gained an undefined power because
there is no expressed provision to state the limitations on their powers. The privilege from
any civil arrest for 40 days before and after the session and during the session results in
exemption from arrest for even more than 365 days. No comprehensive law has been till date
enacted by the parliament for the codification of the parliamentary privileges.

It is mostly resisted by the members because then it will be subjected to the fundamental
rights and would be in the purview of judicial review. Justice M.N. Venkatachaliah, while
heading the Constitution Review Commission also recommended to define and delimit the
privileges for the free and independent functioning of the legislature. This is based on the
apprehension that codification will involve interference of the court as the matters would be
presented in the court of law. Non-codification of privileges has led to greater powers being
enjoyed by the members. But now the time has come to codify and define the privileges and
actions must be taken so that there is smooth functioning of the parliament without any
conflict.

JUDICIAL REVIEW OF THE PARLIAMENTARY PRIVILEGES

The Indian judiciary has been vested with the responsibility of the protection of the
fundamental rights. Parliament members claim absolute sovereignty over their powers and in
any case does not want the judiciary to interfere. But the judiciary is regarded as the guardian
of our Constitution and it cannot sit quietly if any fundamental right of a citizen is violated
due to privileges or when there is an escape from any criminal liability.

The judiciary has to take a stand on the wrongs committed by the members who are taking
the shelter of the privileges. The Supreme Court in Keshav Singh’s case27 observed that the
privileges conferred on the members are subject to the fundamental rights.

27
Keshav Singh v. State of UP, AIR 1965 SC 745.
 14

The Supreme Court has also held that any conflict arising between the privileges and the
fundamental rights would be resolved by adopting harmonious construction. The judiciary is
very well aware of the fact that it does not have jurisdiction over parliamentary matters but it
is necessary for the society that any violation should be resolved by the court as it deems fit.

PRIVILEGES AND THE BRITISH CONSTITUTION

Whenever it comes to privileges the biggest question which arises in front of us is why every
time when privileges are discussed, the Privileges of Britain is taken into consideration. The
answer to my question is that because it is realized that Britain enjoys the largest and the
widest privileges as compared to the whole world and hence it the British houses which are
taken care of.

Unlike the British Parliament, the Indian Parliament is not sovereign. It is

the Constitution which is supreme and sovereign and Parliament will have to act within the
limitations imposed by the Constitution. This is a mark of distinction between the British
Parliament and the Indian Parliament. British Parliament is sovereign.

“One of the hallmarks of such sovereignty is the right to make or unmake any law which no
court or body or any person can set aside or override.” On the other hand, the Indian
Parliament is a creature of the Constitution and its powers, privileges, and obligations are
specified and limited by the Constitution.

A.7 In Special Reference No. 1, a bench of seven judges observed:

“In England, Parliament is sovereign; and in the words of Dicey 28, the three distinguishing
features of the principle of Parliamentary Sovereignty are that Parliament has the right to
make or unmake any law whatever; that no person or body is recognized by the law of
England is having a right to override or set aside the legislation of Parliament; and that the
right or power of Parliament extends to every part of the Queen’s dominion. On the other
hand, the essential characteristic of federalism is “the distribution of limited executive,
legislative and judicial authority among bodies which are co-ordinate with and independent
of each other’s”.

RELEVANT PROVISIONS CONCERNING PRIVILEGES IN THE INDIAN

CONSTITUTION
28
,
Ram Jethmalani, DS Chopra Parliamentary Privileges Law and Practice, p. 316
 15

Article 105 29
and 194 30
of the constitution of India deals with the power privileges and
immunities of parliament and its members and of their state legislature and their members
respectively. This constitution of India does not exhaustively enumerate the privileges of
Indian parliamentarian. As Section 3 of both these articles refers directly to the privilege of
the House of Commons at the commencement of the constitution. Hence it basically deals
with all those privileges that exist in the House of Commons as on 26 January 1950.

Article 105: Powers, privileges, etc. of the House of Parliament and of the members and
committees thereof- 31

(1)    Subject to the provisions of this constitution and the rules and standing orders
regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2)    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, and no
person shall be so liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings.
(3)    In other respects, the powers, privileges and immunities of each House of Parliament,
and of the members and the committees of each House, shall be such as may from time to
time be defined by Parliament by law, and, until so defined shall be those of that House and
of its members and committees immediately before the coming into force of Section 15 of the
Constitution (Forty-fourth Amendment) Act 1978.
(4)    The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by
virtue of this constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of Parliament or any committee thereof as they apply in relation to
members of Parliament.

Article 194: Powers, privileges, etc. of the House of Parliament and of the members and
committees thereof- 32

(1)      Subject to the provisions of this Constitution and to the rules and standing orders
regulating the procedure of the Legislature, there shall be freedom of speech in the
Legislature of every State.

29
2 Ed, DD Basu, Constitution of India, p.326
30
8th ed, M.P. Jain, Constitutional Law 126,
31
Constitution of India (Bare Acts)
32
Constitution of India (Bare Acts)
 16

(2)      No member of the Legislature of a State shall be liable to any proceedings in any
court in respect of anything said or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in respect of the publication by or under
the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3)      In other respects, the powers, privileges and immunities of a House of the Legislature
of a State, and of the members and the committees of a House of such Legislature, shall be
such as may from time to time be defined by the Legislature by law, and, until so defined,
shall be those of that House and of its members and committees immediately before the
coming into force of Section 26 of the Constitution (forty-fourth Amendment) Act, 1978.
(4)      The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by
virtue of this Constitution have the right to speak in, and otherwise to take part in the
proceedings of a House of the Legislature of a State or any committee thereof as they apply
in relation to members of that Legislature.

Hence from the above 2 different Article of the Indian Constitution, it can be inferred that the
position of the state legislature is the same as those of the house of parliament. Therefore
Article 105 applies Mutatis Mutandis to the state legislature as well. Both articles expressly
mentioned two privileges namely- freedom of speech and freedom of publication of
proceedings.

PARLIAMENTARY PRIVILEGES AND THE PRINCIPLE OF NATURAL JUSTICE

In a judgment by the Supreme Court judges in the case of Algaapural R. Mohanraj v Tamil
Nadu Legislative Assembly,33 it was held that the principle of the natural justice cannot be
violated by the privilege committee.

Facts of the case

On 19-02-2015, some members of the Tamil Nadu Legislative Assembly were suspended on
the ground of unruly conduct. In furtherance of this, a privilege committee was formed to
inquire about the conduct of the members and further proceedings related to breach of
privilege. It was found and recommended by the take necessary action against six members
for the breach of privilege.

By a resolution dated 31-03-2015, the members were suspended for a period of ten days for
the next session. Further it was extended to cutting of their salaries and giving any other

33
Algaapural R. Mohanraj v Tamil Nadu Legislative Assembly, 2016 SCC OnLine SC 134
 17

benefit till the suspension period. A writ petition was filed by the members in the Supreme
Court under Article 32 of the Constitution.

Contentions raised by the members

The contention was raised by the petitioners that their fundamental rights under Article 19(1)
(a), 19(1)(g), 14 and 21 of the Constitution have been violated by the said resolution.

Judgement
The court rejected the contention of the petitioners that the resolution violated Article 19(1)
(a) and 19(1)(g). It further accepted the contention that the right was violated under Article 14
of the Constitution. The court observed that the video recording which showed the act of the
members amounting to the breach was not presented before the petitioners. If it would have
been presented then, they might have had the chance to explain their conduct. It was further
directed by the court to restore the salary and other benefits of the petitioner.

PRIVILEGES AND FUNDAMENTAL RIGHTS

In Gunupati Keshavram Reddi v. Nafisul Hasan, 34 one  Homi Mistry was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for
contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s custody.
On his applying for a writ of habeas corpus on the ground that his detention was in violation
of Article 22(2), the Supreme Court quashed the detention and ordered his release as he had
not been produced before a Magistrate within 24 hours of his arrest as provided in Article 22
(2). This decision, therefore, indicated that Article 194 (or Article 105) was subject to the
fundamental right guaranteed under Article 22(2) in Part III of the Constitution.

However, in M.S.M. Sharma v. S.K. Sinha35 it was also contended by the petitioner that the
privileges of the House under A.194 (3) are subject to the provision of Part III of the
Constitution. In support of his contention, the petitioner relied on the Supreme Court’s
decision in Gunupati Keshavram Reddi v. Nafisul Hasan. But, in Sharma’s case, the
Supreme Court held that in case of conflict between fundamental right under Article 19 (1)
(a) and a privilege under Article 194 (3) the latter would prevail. As regards Article 21, on
facts the Court did not find any violation of it.

In Re Under Article 143,36 the Supreme Court explained the proposition laid down
in M.S.M. Sharma case and said:
34
Gunupati Keshavram Reddi v. Nafisul Hasan, AIR 1954 SC 636.
35
M.S.M. Sharma v. S.K. Sinha, AIR 1959 SC 395.
36
In Re Under Article 143, AIR 1965 SC 745.
 18

‘We do not think it would be right to read the majority decision as laying down a general
proposition that whenever there is a conflict between the provisions of the latter part of
Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the
latter must always yield to the former. The majority decision, therefore, is taken to have
settled only that Article 19(1)(a) would not apply and Article 21 would.’

The rules of each House provide for a committee of privileges. The matter of breach of
privilege or contempt is referred to the committee of privileges. The committee has the power
to summon members or strangers before it. Refusal to appear or to answer or to knowingly to
give the false answer is itself a contempt. The committee’s recommendations are reported to
the House which discusses them and gives its own decision.

PRIVILEGES AND THE COURTS

The conflict between legislative privileges and the law courts came to be resolved by
Supreme Court in In Re Under Article 143, a reference case, popularly known as Keshava
Singh’s Case  or U.P. Assembly Case.

In this case, one Keshava Singh, a non- member, of the U.P. Assembly printed and published
a pamphlet. The Speaker of the U.P. Legislative Assembly reprimanded him for contempt
and breach of the privilege of the member Mr. Narsingh Naraina Pandey. On the same day,
Mr. Keshava Singh, who was present in the house, by his conduct, committed another
contempt in the house. The Speaker, thereupon, directed Mr. Keshava Singh to be admitted to
prison. A warrant was issued for his detention in the jail for 7 days and he was so detained.

Mr. Soloman, his advocate, moved under Section 491 CrPC37 read with Article 226,
a Habeas Corpus  petition38 alleging that his detention in jail was illegal and mala fide
because he was not given an opportunity to defend himself. The petition was heard by 2
Judges of Allahabad High Court which granted interim bail to Keshava Singh and he was
released, pending the decision of the case on merit.

On this, the Assembly, by a resolution took the view that the 2 Judges, Mr. Keshava Singh,
and Mr. Soloman had committed Contempt of the Assembly and ordered that the Keshava
Singh be immediately taken into custody and the 2 Judges and the Advocate be brought in
custody before the House. At this, the 2 Judges and the Advocate, by separate petitions

37
Amit Singh, Indian Parliamentary Priviledges, https://indiankanoon.org/doc/74909
38
,
Ram Jethmalani, DS Chopra Parliamentary Privileges Law and Practice, p. 316
 19

moved under 22639 the High Court, contended that the resolution amounted to contempt of
court and that it be set aside and its implementation be stayed by the interim order.

The petition was heard by the Full Bench of all the 28 Judges of the Allahabad High Court.
The court ordered the stay of implementation of the resolution. The assembly modified its
order and the warrant against the 2 Judges was withdraw, but they were asked to appear
before the House and explain their conduct. The Judges moved an application before the
Court against the modified order and the Court granted the stay against the implementation of
the later order.

At this stage, the President referred the matter to the Supreme Court, invoking the provisions
of Article 143(1), for obtaining its advisory opinion. The main questions referred to were-

1. Whether the legislature is the sole and exclusive Judge of its privileges and whether it
is competent to punish a person for its contempt taking place outside the Legislature?
2. Whether the High Court who entertained a petition of habeas corpus challenging the
validity of the detention of a person sentenced by the assembly under a general or
unspeaking warrant has committed contempt of the Legislature?

The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit the contempt
of the house by issuing an interim bail order. The Court explained that the Court under
Article 226 had jurisdiction to order the release of a person from illegal detention.

The Court said that the courts in India could examine the validity of detention of a person,
sentenced by the Assembly, under a general or unspeaking warrant.

The Courts in England cannot examine the validity of the general warrant issued by the
House of Commons. Referring to this, the Court said that “such a right was not conferred on
Legislatures in India. The House of Commons is a part of the High Court of Parliament as a
superior Court and as a result, the general warrant issued by it cannot be subjected to scrutiny
by the other superior Courts. Legislatures in India never discharged any judicial functions and
their historical and constitutional background does not support the claim to be regarded as a
Court of record. Therefore, the very basis on which the Court in England treats a general
warrant issued by the House of Commons is absent in India.”

39
8th ed, M.P. Jain, Constitutional Law 126,
 20

The question whether the privileges enjoyed by the Legislature under the latter part of Article
194(3) were subject to the provisions of Part III relating to fundamental rights, was left
undiscussed. However, the Court observed that such privileges were necessarily subject to
Article 21 and 22 of the Constitution.

CONCLUSION
The privileges are conferred on the members for smooth functioning of the parliament. But
these rights should always be in conformity with the fundamental right because they are our
representatives and work for our welfare. If the privileges are not in accordance with the
fundamental rights, then the very essence of democracy for the protection of the rights of the
citizen will be lost. It is the duty of the parliament not to violate any other rights which are
guaranteed by the constitution. The members should also use their privileges wisely without
making them corrupt. The parliament cannot adopt every privilege that is present in the house
of commons but should adopt only those privileges which accordingly suits our Indian
democracy.40

Both the Parliament and State Legislatures have a duty to look carefully before making any
law so that it doesn’t harm other rights. It is also a duty of the members to properly use these
privileges and not misuse them for alternate purposes that are not in the favour of general
interest of nation and public at large.

The Court has evolved the proper doctrine to determine the privileges of the parliament that
the Indian parliament can adopt. The Doctrine of Pen, Ink and Indian rubber
theory. In Hardwari Lal v. The Election Commission of India41 Court explained this
Doctrine. Justice Sabharwal made the following observation: “I am of the view that it is
essentially tautologies to first read something into the Constitution suggested on behalf of the
respondents, one is to first read the King, the Queen, the House of Lords or the Acts of
Attainder into the Constitution and thereafter to proceed to nullify them on the plain ground
that by the very nature of things they cannot form part of a Republican Constitution.”

As to borrowing examples and cases of privileges from the Constitution of other countries,

the Supreme Court in M.P.V. Sundaramier & Co. v. State of Andhra Pradesh 42, cautioned:
“The threads of our Constitution were no doubt taken from other Federal Constitution but
when they were woven into the fabric of our Constitution their reach and their complexion
40
O. Gay & A. Horne (2009), Parliamentary Privilege and Qualified Privilege
41
Hardwari Lal v. The Election Commission of India, 1977 (2) Punj. & Har. 269
42
M.P.V. Sundaramier & Co. v. State of Andhra Pradesh, AIR 1958 SC 468
 21

underwent changes. Therefore, valuable as the American decisions are as showing how the
question is dealt with in sister Federal Constitution great care should be taken in applying
them in the interpretation of our Constitution.”

The National Commission to Review the Working of the Constitution (NCRWC) 43 has also
recommended in the report, submitted on March 31, 2002, that “The privileges of legislatures
should be defined and delimited for the free and independent functioning of Parliament and
State Legislatures.” It may thus be stated that the codification of privileges would strengthen
the rule of law.

BIBLIOGRAPHY:

I. BOOKS:

 V.N. Shukla, Constitution of India, (Eastern book company, Lucknow, 13th edition, 2017)
 M.P. Jain, Constitutional Law, (Lexis Nexis, 8th ed, 2018)
 Constitution of India (Bare Acts)

43
National Commission to Review the Working of the Constitution (NCRWC) Report, 2016, Vol. 1
 22

 Ram Jethmalani, DS Chopra, Parliamentary Privileges Law and Practice

 16th Edition, Sir Thomas Erskine May, Parliamentary Practice
 2 Ed, DD Basu, Constitution of India,

II. RESEARCH ARTICLES:

 Preeti Singh, Parliamentary Privileges,

<https://www.lawctopus.com/academike/parliamentary-privileges/ >
 Rachel Macreadie, An Introduction to Parliamentary Privilege,
<https://www.researchgate.net/publication/280735124 An Introduction to Parliamentary
Privilege>
 Ankit Jain, Indian Parliament, <https://www.lawkidunya.com/>
 Jayant Bhatt, An Analysis of Parliamentary Privileges in India,
<https://www.legalserviceindia.com/articles/parliamentary001.htm>
 Harsh Agrawal, Parliamentary Privileges and Immunities,
<https://blog.ipleaders.in/parliamentary-privileges-india/>
 Amit Singh, Indian Parliamentary Priviledges, <https://indiankanoon.org/doc/74909>
 O. Gay & A. Horne (2009), Parliamentary Privilege and Qualified Privilege

III. PAPERS:

 Akhtar Ali Khan, Power, Privileges and Immunities of Parliament, Vol. 4, The Indian
Journal of Political Science
 National Commission to Review the Working of the Constitution (NCRWC) Report,
2016, Vol. 1
 Parliamentary Proceedings (protection of the publication) Act, 1977
 National Security Act, 1980