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Powers And Priviledges Of Members Of Parliament

What is Parliament?

A cornerstone of democratic ideals in any representative democracy is parliament, which serves as a forum for debate on matters of social and civic importance in any popular democracy. Though the notion of Parliament has its roots in European nations dating back to the Middle Ages, it has been an integral feature of India's democratic framework from the country's creation.

Both houses of parliament were established following the first general election in 1952. It should be emphasised that the Constituent Assembly served as the interim legislative body after the Constitution was enacted and until regular elections, which occurred between 1950 and 1952.[1]

Composition of Parliament

Article 79 of the Constitution specifies the organisation of parliament. The President and the two chambers, the Lower House or House of People and the Upper House or Council of States, are listed as members of Parliament.[2]

The Rajya Sabha is the Indian Parliament's Upper House. Because it can never be dissolved, this home is eternal in nature. This is due to the fact that every member of the Rajya Sabha is elected for a six-year term, and one-third of the members retire every two years, while the rest of the members remain in office. It's similar to a series of elections. This house is made up of 250 members, with 238 of them being elected by a single transferable vote. On the recommendation of the council of ministers, the President nominates 12 members.

The members would be chosen by the elected members of each state's legislature, with proportionate representation in each state. This clause reflects the Council of States' federal nature, in which each state is represented proportionally. The number of members representing each state, however, ranges from one to thirty-one (for Uttar Pradesh).[3] To become a member of the Rajya Sabha, one must be of Indian nationality, not occupy any profit-making post, and be at least 30 years old.[4]

If a person occupies a profit-making office, is of unsound mind, or has been discharged insolvent, he or she must be disqualified as a member of the house. he/she is not a citizen of India and has voluntarily accepted the nationality of other nations; he/she is disqualified under any law made by the Parliament.[5]

The LokSabha shall exist and shall be composed of a maximum of 530 members chosen from various states, with no more than 20 members chosen from the Union Territories. If the President believes the Anglo-Indian Community is underrepresented in parliament, he may appoint two Anglo-Indian Community members. Some seats have been set aside specifically for the Scheduled Caste and Scheduled Tribes populations across the country.

The Representation of the People Act, approved by the Indian Parliament in 1951, allocates representation to the states and union territories.. The Lok Sabha, unless dissolved midway, continues its tenure for 5 years from the day of its first meeting.[6]

Parliamentry Priviledges

Members of parliament are granted privileges or advantages under Articles 105 and 194 so that they can carry out their responsibilities and functions without impediment. Privileges like this are provided because they are necessary for democratic functioning. From time to time, the law should specify these authorities, privileges, and immunities.

These privileges are regarded exceptional provisions that take precedence in the event of a disagreement. These provisions also put on them the responsibility of enacting efficient laws that do not infringe on the rights of others. Although the legislature or the Legislative Assembly can use their rights, privileges, and immunities, they cannot function as a court of law.[7]

The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution. Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees. The language of Article 105 is "mutatis mutandis" the same as that of Article 194 except that for the expression "Parliament" in Article 105 the expression "legislature of a State" is used in Article 194.

Article 105 & Article 194

Article 105(1) provides that 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.

Article 105(2) contains two parts. Part one says that 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. Part two provides that no person shall be liable in respect of the publication by or under the authority of either House of Parliament or any report, paper, vote or proceedings.

Article 105(3) again contains two parts. Part one says that in other respects the powers, privileges and immunities of each House of Parliament, and of the Members and the committees shall be such as may from time to time be defined by Parliament by law. Part two says that until so defined, the powers and privileges shall be those of the House of Commons of the Parliament of the United Kingdom and of its Members and committees at the commencement of the Constitution. Accordingly whenever a question arises with regard to the availability of a privilege, it becomes necessary to ascertain the powers, privileges and immunities of the House of Commons as on the 26-1-1950[8].

It is to be noted that Article 105(3) is transitional in character and the Constituent Assembly contemplated that a statute would be made in due course after gathering sufficient evidence in this regard[9]. The Constitution (44th Amendment) Act, 1978 made some cosmetic changes in Articles 105(3) and 194(3) (w.e.f. 20-6-1979) but the substance remains the same.
In India, some legislative privileges are expressly mentioned in the Constitution while the others are recognised in the Rules of Procedure and Conduct of Business in Lok Sabha framed under its rule-making power.

Privileges Mentioned in the Constitution

  1. Freedom of speech
    For the effective functioning of parliamentary democracy, the freedom of speech in Parliament is guaranteed. This is to enable the Members to express themselves freely in the House without any fear or favour. In England, this freedom was established in the 17th century itself[10]. This was fortified by the Bill of Rights in 1688. In India, the freedom of speech in Parliament is safeguarded by Article 105(1) and (2). A constitutional restriction on this freedom imposed by Article 121 (similarly Article 211) is that no discussion shall take place in any House with respect to the conduct of a Supreme Court Judge or a High Court Judge in discharge of his duties except when a motion for his removal is under consideration.
  2. Immunity from civil and criminal proceedings
    The first part of Article 105(2) provides that 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. The scope of this immunity was examined by the Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy[11].

    The Court held:
    "This article confers immunity inter alia in respect of 'anything said ... in Parliament'. 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 sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. 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. This immunity is not only complete but is as it should be.
  3. Right of publication of proceedings
    Part two of Article 105(2) provides that no person shall be liable in respect of the publication by or under the authority of the House of Parliament of any report, paper, votes or proceedings. The Parliamentary Proceedings (Protection of Publication) Act, 1956 provided that no person shall be liable to any proceedings, whether civil or criminal, in any court in respect of the publication of a substantially true report of the proceedings of either House of Parliament unless it is proved that the publication of such proceedings was expressly ordered to be expunged by the Speaker.9 This position has been made much stronger by the insertion of Article 361-A by the Constitution (44th Amendment) Act, 1978.

With regard to the other privileges, the following are recognised under the Rules of Procedure and Conduct of Business in Lok Sabha as well as by certain laws:

  1. Freedom from arrest of Members in civil cases during continuance of the Session of the House and 40 days before its commencement and 40 days after its conclusion.[12]
  2. Exemption of Members from liability to serve as jurors.[13]
  3. Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment and release of the Member.[14]
  4. Prohibition of arrest and service of legal process within the precincts of the House without obtaining the permission of the Speaker.[15]
  5. Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House.[16]
  6. All Parliamentary Committees are empowered to send for persons, papers and records relevant for the purpose of the enquiry by a committee.[17]
  7. A Parliamentary Committee may administer oath or affirmation to a witness examined before it.[18]
  8. The evidence tendered before a Parliamentary Committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid down on the table of the House.[19]
  9. The right to prohibit the publication of its debates and proceedings.[20]
  10. Right to exclude strangers from the House.[21]
  11. Right to commit persons for breach of privilege or contempt of the House, whether they are members of the House or not.

Fundamental Rights and Legislative Privileges

As legislative privileges are not codified in India, the question whether fundamental rights control the privileges or not was considered by the Supreme Court in some cases.

In M.S.M. Sharma v. Sri Krishna Sinha the following legal principles were laid down by the Supreme Court on this issue:
  1. As on 26-1-1950, the privilege of prohibiting the publication of its debates belonged to the House of Commons and as such by operation of Article 194(3), the Indian legislatures do have this privilege.
  2. Article 194 is not subject to Article 19. Article 19(1)(a) is a general provision and Article 194 is a special provision. As a general provision cannot override a special provision, Article 194 will have overriding effect. To resolve conflict, if any, between these two articles, the rule of harmonious construction must be applied.
  3. Deprivation of personal liberty as a result of proceedings before a Committee of Privileges was deprivation in accordance with the procedure established by law and hence Article 21 is not violated.

Courts and legislatures
When one examines the relationship between the courts and legislatures, the questions as to the authority to decide the existence of a privilege and as to whether the courts could examine the validity of a committal by a legislature for its contempt or breach of privilege etc. have to be addressed. In fact, the situations under which the legislatures claim privileges in India bring the courts in the arena quite often. In India, the legislatures may claim the privileges in three situations: (1) when the Constitution grants it specifically; (2) it has been created by a law of the legislature; (3) it was enjoyed by the House under Article 105(3) or 194(3). No doubt the courts in these circumstances cannot be denied any role in this area.
Some of the above-stated issues were examined by the Supreme Court in Kesava Singh In re.

In the majority opinion in this case (6:1), the following propositions of constitutional interpretation were laid down:

  1. The power of construing Article 194 (also Article 105) in regard to the nature, scope and effect of the powers of the House rests with the judiciary of the country.
  2. Under Article 226, the High Court has power to scrutinise the orders issued by the legislatures as the expression "any authority" in Article 226 includes the legislature also.
  3. Article 211 provides unambiguously that the conduct of a Judge in the discharge of his duties can never become the subject-matter of any action taken by the House in the exercise of its powers or privileges conferred by the latter part of Article 194(3).
  4. Article 212 ousts the jurisdiction of the courts in cases of regulation of procedure inside the House only and it does not act as a limitation on the powers of the court to test the legality of action.
  5. The fact that the first part of Article 194(3) refers to future laws defining the privileges as being subject to the fundamental rights is a significant factor in construing the latter part of Article 194. Such a legislation would be "law" within the meaning of Article 13 and the courts will be competent to examine its validity vis-a-vis fundamental rights.
  6. In England, at one time, the House of Commons was the highest court of justice. Because of this, the House of Commons came to be regarded as a superior court of record, with the result that the general warrants issued by the other superior courts were held to be exempt from the scrutiny by the courts in England by treating these warrants as conclusive. In India, the Legislative Assemblies never discharged any judicial function and their historical and constitutional background does not support their claim to be regarded as courts of Record in any sense.

This case does not settle the law of privileges in India for three reasons. Firstly, the relationship between fundamental rights in general and the legislative privileges was not spelt out clearly. Secondly, legally speaking, advisory opinions rendered by the Supreme Court under Article 143 are not binding on the President and this factor destroys the binding nature of a judicial precedent. Thirdly, the principles of law laid down by the Supreme Court in this advisory opinion are totally based upon the five questions that were limited to the facts and the circumstances of the case set out in the presidential reference. If the facts are different then the principles of law have to be laid down differently.

On the whole, the law relating to legislative privileges is in an unsatisfactory position. As the legislative privileges are encroaching upon the freedoms guaranteed by Part III of the Constitution and also coming into clash with the powers of the courts, there is need to codify these privileges as immediately as possible defining the scope of the privileges including the "breach of privileges" and the contempt of the House.

It is to be noted that the Constitution of India already contains certain immunities and prerogatives for the President and the Governors under Article 361 and hence there should be no difficulty in giving recognition to certain legislative privileges. Further, it may be pointed out that the argument that the codification leads to curtailment of privileges is wholly misconceived as the privileges of the British House of Commons up to 1950 are clearly laid down and the same can be codified within the framework of the Indian Constitution.

Famous Landmark Cases
  1. Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others [22]:

    The appellant is an elected member of the West Bengal Legislative Assembly. The appellant had an intention to ask certain questions in the assembly and therefore he gave the notice for the same. The questions to be asked in the assembly were refused in compliance with the rules of procedure for the conduct of the business in the assembly. But the appellant published those questions he was not allowed to ask in the assembly in a local newspaper called JANAMAT.

    The first respondent, who was then functioning as a Sub-Divisional Magistrate and because of whose conduct the matter of questions arose, filed a complaint against the appellant and two others, the editor and the printer and publisher of those questions. The petition contained the fact that the appellant had made slanderous accusations against him with an intention to be read by the members of the public.

    These accusations were false and the appellant published them, having an intention of harming the reputation of the complainant. He also alleged that publishing such false questions in the journal first requires prior permission by the government in instituting the legal proceeding against the public servant.

    In this case, it was held that the provisions of Article 194 even though disallowed by the speaker were a part of the proceedings of the house and publication for the same will not attract any sections of the Indian Penal Code. He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but also give the right to ask questions and publish them in the press.
  2. P.V. Narsimha Rao v/s State (1998):

    The facts of the case are - some of the MP's received bribes to vote against the motion of no-confidence against the Prime Minister P.V. Narsimha Rao. He was charged under IPC and Prevention of Corruption Act on the grounds that he bribed some MPs to vote against the no-confidence motion when he was serving as the Prime Minister. In this case, the question arose that under Article 105(2) does any member of parliament have any immunity to protect himself in criminal proceedings against him?

    It was held by the majority of the Court that under Article 105(2) the members of the parliament will get immunity and thus, the activity of taking bribe by the MP's will get immunity despite anything said by them or any vote given by them in the Parliament. The Court further explained that the word anything here will be interpreted as a wider term. The Court interpreted the term anything in a wider sense and did not prosecute P.V. Narsimha Rao.
  3. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P [23]:

    The facts of the case: - The U.P. Legislative Assembly issued a warrant against the Home Minister who was arrested from his residence in Bombay on the ground of contempt of the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground that his detention under Article 22(2) violates his fundamental right. The Supreme Court accepted the arguments and ordered his release according to Article 22(2). He was not presented before the magistrate within 24hrs of his arrest or detention. Not presenting him before the magistrate resulted in the violation of his fundamental right under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot supersede the fundamental rights.
  4. MSM Sharma v. Sri Krishna Sinha [24]:

    The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna. He published a report on the proceedings of the Bihar Legislative Assembly and the reports were said to be removed by the speaker. The editor was presented before the Legislative Assembly to give reasons for the breach of privilege committed by him.

    At first, he was held guilty for his conduct. Then, in an appeal, the editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the Court denied all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a special provision. If at any time both of these articles come under any conflict the latter will prevail over the former.

    As the general provision cannot overrule the effect of the special provision. It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of Harmonious Construction (every statute should be read as a whole and interpretations consistent of all the provisions of the statute should be adopted when in conflict of any statute or any part of the statute) should be applied.

After examining Articles 105 and 194, it is evident that they are absolute. These unique provisions are given to the Parliament in order for it to function properly. These provisions also put on them the responsibility of enacting efficient laws that do not infringe on the rights of others. Although the legislature or the Legislative Assembly can use their rights, privileges, and immunities, they cannot function as a court of law.

There is a distinct line dividing which rights and privileges are absolute and which are not. Legislative Assemblies and Parliaments of India, for example, never perform any judicial functions, and their historical and constitutional context does not support their claim to be considered courts of record in any way. As a result, no exemption from judicial review of general warrants issued by the House in India may be asserted.

Both the Parliament and state legislatures have a responsibility to study carefully before passing any legislation to ensure that it does not infringe on other people's rights. It is also the members' responsibility to appropriately use these rights and not to abuse them for objectives that are not in the best interests of the nation or the broader public. As a result, we must remember that power corrupts, and absolute power corrupts totally. To ensure that this does not occur when using the powers conferred, the public and other governing bodies must remain vigilant at all times.

  1. The Parliament of India Under Indian Constitution by Dhruv Vatsyayan
  2. Article - 79 of The Indian Constitution
  3. Article- 80(1) of The Indian Constitution
  4. Article- 84 of The Indian Constitution
  5. Article- 102 of The Indian Constitution
  6. Article-331 of The Indian Constitution
  7. Article- 105 & Article-194 of The Indian Constitution
  8. (Bombay, Bharatiya Vidya Bhavan, 1971) p. 26.
  9. H.M. Seervai, Constitutional Law of India Vol. II (Bombay, Tripathi, 1993) pp. 2180-81
  10. Sir John Eliot case, 3. State Trials 294 - quoted in M.P. Jain Indian Constitutional Law (Bombay, Tripathi, 1987) p. 56.
  11. 1970) 2 SCC 272.
  12. Section 135-A, Code of Civil Procedure, 1908
  13. Supra Note 11
  14. Rules 229 and 230 of the Rules of Procedure and Conduct of Business in Lok Sabha
  15. Rules 232 and 233 Ibid.
  16. Rule 252 Ibid.
  17. Rules 269 and 270 Ibid.
  18. Rule 272 Ibid.
  19. Rule 275 Ibid.
  20. Rule 249 Ibid.
  21. Rule 248 Ibid
  22. Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613
  23. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952
  24. AIR 1959 SC395

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