Did you exercise your right to vote during recent elections? So when you elect a person to be your representative in the Parliament or the Legislative Assembly, the Constitution also imposes certain special privileges upon their role. Those are termed as Parliamentary Privileges, majorly provided under Article 105 of Indian Constitution. The Article 194 also provides similar provision for members of the Legislative Assembly. So here, we have attempted at explaining Article 105, the privileges underneath, and the case laws around the same which helped interpret the provision.
Article 105 of the Constitution of India
Before jumping to the explanation in simple words, it’s better to have a look at what the original provision states.
“105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.
(1) Subject to the provisions of this Constitution and to 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.”
While Article 105 of Indian Constitution talks about privileges enjoyed by the members of Parliament, Article 194 is the sister provision for members of Legislative Assemblies of the States.
Major Parliamentary Privileges under Article 105
- Freedom of Speech in Parliament;
- Immunity from proceedings in a Court for anything said or vote given in the Parliament or Committee;
- Immunity from proceedings in a Court for any publication by or under the authority of Parliament, of any report, paper, votes or proceedings;
- Prohibition on Courts from inquiring into validity of Parliamentary proceedings on alleged irregularity of procedure;
- Immunity of an MP or officer empowered to regulate procedure/conduct of business or maintain order in Parliament, from being subjected to a Court’s jurisdiction regarding exercise of those powers;
- Immunity from civil/criminal proceedings in Court regarding publication in a newspaper of a substantially true report of Parliamentary proceedings unless the same is proved to be made with malice
Important Judgments on Article 105 of Indian Constitution – Parliamentary Privileges
Sita Soren v. Union of India (decided on March 4, 2024)
The 7-Judge Bench of Supreme Court of India reversed its 1998 decision in PV Narasimha (supra) and held that bribery was not immune under sub-section 2 of Article 105 of Indian Constitution and corresponding provision under Article 194. The Bench explained that “a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee.”
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha & Ors (decided on January 10, 2007)
The 3-Judge Bench of Supreme Court held that the power of Judicial review under Article 13(2) of Constitution would extend to the Parliamentary Privileges on a case-to-case basis. It further held that although Article 122 restricted an inquiry into Parliament’s procedure by the Courts or anyone on grounds of procedural irregularity, it did not exclude instances of review of a procedure found to be illegal or unconstitutional.
PV Narasimha v. State (decided on April 17, 1998)
The Supreme Court Constitution Bench elaborated the Parliamentary privileges and the immunity under Article 105 of Indian Constitution. The Apex Court further held that even if a member accepted a bribe in order to vote against a no-confidence motion, he/she could not be prosecuted and not answerable in a Court of law for the alleged conspiracy, agreement and voting.
Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others (decided on May 8, 1970)
The 6-Judge Bench of Supreme Court explained that “The word ‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from the words ‘in Parliament’ which means during the siting of Parliament and in the course of the business of Parliament.. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court.”
Dr Jatish Chandra Ghosh v. Hari Sadhan Mukherjee (decided on January 16, 1961)
Supreme Court held that the immunity enjoyed by a member of the House of Commons was confined to speeches made in Parliament and did not extend to publication of the debate outside. If he/she publishes the speech made in the House, separately from the rest of the proceedings of the House, he/she is liable for defamation, in case.it was defamatory.
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