UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A., LL.B. (HONS.)

SEMESTER IV

ACADEMIC YEAR: 2020-21 SESSION: JAN-MAY, 2021

ASSIGNMENT

FOR

CONSTITUTIONAL LAW

Under the Supervision of: ISHITA SHARMA

(TO BE FILLED BY THE STUDENT)

NAME:

ANJALI NAIN (500076924)

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 PREFACE

I feel great pleasure in presenting this term paper entitled: “PARLIAMENTRY

PRIVELEDGES AND FUNDAMENTAL RIGHTS” under study. I hope that the
readers will find this paper interesting and that the paper in its present form shall
be well received by all. The paper contains the detailed analysis regarding the
privileges to the members of parliament.

Article 105 and 194 of the Indian Constitution provides the room for privileges to
the members to parliament and state legislature.

Every effort is made to keep the paper error free. I would gratefully acknowledge
the suggestions to improve the paper so as to make it more useful.

University Of Petroleum and Energy Studies ANJALI NAIN

Dehradun, Uttarakhand

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 ACKNOWLEDGMENTS

On successful completion of this project, we would like to thank you Miss. Ishita
Sharma for helping us with the research and always attending our doubts and
queries regarding the same. I sincerely thank him for all the support and
encouragement without which the completion of this project could have not been
possible.

I would like to convey our gratitude towards our friends and batch mates who have
rendered us their valuable time and without their help this project would have not
been in its present shape and form. No work is complete with solo endeavor,
neither is ours. I thank each and every non-teaching staff of UPES for their
unconditional support and infinitum. I would also like to convey our thanks to the
Library Staff of UPES.

I am grateful to Almighty, who has given us enough strength and blessings to work
hard and make it to best of our ability. Last but not the least: I would also like to
thank our parents who have given us the chance to study in this esteemed
University a haven for legal edification.

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 ABSTRACT

This research paper talks about the privileges given to the member of parliament and state
legislature under Article 105 and 194 respectively, this paper focuses on the types of privileges
and their scope in the Indian system.

The requirements to avail such immunities and the evolution in the concept of parliamentary
privilege are also discussed in the paper using some landmark cases such as G.K. Reddy v.
Nafisul Hasan, Markandey Katju v. Lok Sabha and Pandit M.S.M. Sharma v. S.K. Sinha.
The concept of Exclusive cognizance which is the right given to each of the houses of Parliament
(Lok Sabha and Rajya Sabha) to regulate their own proceedings and internal affairs without
interference from outsiders is also being described and its need in India has also been critically
analyzed.

The paper at the end provides some suggestions which may help in making the parliamentary
privilege go hand in hand with the doctrine of balance of power.

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 TABLE OF CONTENT

I. Introduction…………………………………………………6-7

II. Privileges mentioned in the constitution……………………… 7-10

III. Judicial approach to Parliamentary Privilege …………...........10-12

IV The treatment of ‘Exclusive Cognizance’ by Indian Courts…………12-13

V. Critical analysis ……………………………………….. 13-14

VI. Conclusion………………………………………..……14-15

VII. Suggestions…………………………………………………15

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 PARLIAMENTRY PRIVELEDGES AND FUNDAMENTAL
RIGHTS

Introduction

Sir Thomas Erskine who was a British jurist has defines parliamentary privileges as “the sum of
the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of
Parliament, and by the members of each House individually, without which they could not
discharge their functions, and which exceed those possessed by other bodies or individuals” this
is the most universally used and accepted definition. This concept has been borrowed from
England. The relevant article of the Indian Constitution with respect to parliamentary privileges
is Article 105. And Article 194 for state legislatures.

The reason behind the existence of such ordinary power was that Parliament needs to assert its
integrity, independence and authority against outside influence for proper functioning. Though
the Indian constitution is adopted from the English model, our parliament is not as sovereign a
the English parliament. Sovereignty of the parliament is the most out-standing and vibrant
feature of the British parliament. The English constitution has assigned no limits to the
parliament, there parliament is very much free to make and un-make laws and no other body has
been given the power to override their decisions.

But in India the parliament has not been given a blank cheque as our constitution embodies the
principals of limited government. The Indian parliament enjoys certain powers but cannot gain
supremacy over the citizens as the framer of the constitution has taken care that no govt gets
absolute power as the citizens of India has struggled hard for there freedom and even to keep up
with the idea of swaraj.

Article 105 and Article 194 of the Indian constitution grants some privileges to the members of
the parliament. These privileges are an exception to ordinary law and are made to help the

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members of parliament perform their duties or function properly without any fear of intimidation
or punishment. Such advantages are granted as they are needed for the proper functioning of the
democratic setup. These powers, privileges and advantages are to be defined by the law from
time-to-time. These privileges are considered as special provisions and have an overriding effect
during conflict.

Privileges mentioned in the constitution and Fundamental rights

The Indian constitution provides certain rights to the citizen of India and the citizens cannot
claim anything beyond them. but these rights are not absolute and there are some restrictions
imposed by the constitution itself. In some cases, the restrictions are already mentioned in the
constitution and if they are not mentioned in certain cases the parliament has the right to impose
further restrictions.

Freedom of speech and publication under parliamentary authority

Article 105 clause (1) and (2) gives the members of parliament the freedom of speech under
clause (1) and gives the Privilege that no member of parliament can be held liable in any
proceedings before Court for anything said or any vote given by the member of parliament
during the Parliamentary session or any committee under clause (2). This freedom of speech
also extends to other acts done in connection with the proceedings of each House, such as, for
notices of motions, questions, reports. It also states that, no member of parliament can be held
liable for publication of any report, paper, votes or proceedings if it is made by the parliament or
any authority subordinate to it. No civil or criminal action will lie against the member of
parliament for defamation of things said in Parliament or its committees. In the case of Tej
Kiran Jain v Sanjeeva Reddy1 SC 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”.

1
Tej Kiran Jain v Sanjeeva Reddy, (1970) 2SCC 272

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Both Article 19(1)(a) and Article 105 of the Constitution talks about freedom of speech the only
difference is that. Article 105 applies to the members of parliament and is not subjected to any
reasonable restriction. Whereas Article19(1)(a) applies to citizens but this freedom is not
absolute and has reasonable restrictions.

Though, Article 105 is an absolute privilege provided to the members of the parliament but this
privilege can only be used in the premises of the parliament and not outside. Hence, If a member
of parliament gives a statement outside the premises of the parliament and it gets published, and
is reasonably restricted under freedom of speech then that published article or statement will be
considered as defamatory the privilege given to the members of parliament dosent apply in such
situations. As Article 105 is applicable for the members of parliament the same provision is
stated under Article 194 of the constitution, but in this the members of the state legislature are
referred rather than the members of parliament.

In the case of P.V. Narsimha Rao v. State2 it was held that the freedom of speech granted under
this article cannot be restricted under Article 19(2). It was also held that 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 will fall in the ambit of Article 105(2).

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

1. Article 118 of the Constitution states that Freedom of speech should be in accordance with the
constitution and should adhere to the rules and procedures of the parliament.3

2. Article 121 of the Constitution restricts the member of parliament from discussing the conduct
of the judges of the Supreme Court and the High Court. But, this is not an absolute requirement,
even if this happens, it is the matter of the parliament and the court cannot interfere.4

3. The member of parliament cannot claim any privilege and immunity for anything which is
said outside the proceedings of the house.

2
P.V. Narsimha Rao v. State, (1998) 4 SCC 626
3
Constitution of India. Art.181
4
Constitution of India. Art. 121

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Power to make rules

The Parliament of India holds the power given by the Constitution of India which enables it to
make its own set of rules but this power is subjected to the provisions of the Constitution such
rules should not infringe any provision of the Indian constitution as it would be declared void if
it does so. Though it can make its own rules, the rules should not be made for its own benefit.

Internal independence

This right provides autonomy to the parliament and legislation for the effective working of their
members, internal independence or autonomy exists without any interference from the outside
party or bodies. The houses themselves deal with their respective issues internally without any
interference of the statutory authority. The Indian judiciary might generally not interfere with the
proceeding until it is found to be illegal or unconstitutional.

Freedom from being arrested

The members of parliament cannot be arrested 40 days before and 40 days after the scheduled
session of the house. If in any case a member of Parliament is arrested within this period, the he
should be released in order to attend the session freely.

The chairman or the speaker should be informed by the concerned authorities about the detention
and the reason of arrest of any members of the parliament. But, the limitation of this privilege
ends if a member is arrested outside the limits of the house on criminal charges against him
under The Preventive Detention act.

Freedom from appearing as a witness

The members of the parliament are exempted from attending court as a witness through their
Parliament Privilege. complete liberty is given to the members of Parliament to attend the house
and perform their duties without any interruption from the court.

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Right to punish members or outsiders for contempt

The parliament has the right to punish a person then it can be a member of parliament or maybe
non-members who commits contempt or breach of the privileges given to him/her. The houses
have the right to punish any person for any contempt made against the houses in the present or in
the past.

Law Courts and Privileges

The power to try anyone or any case directly as a court of justice doesn’t vests with the House of
Parliament or Legislature, but it has the power to proceed quasi judicially in cases of contempt of
its authority or motions concerning the privileges and immunities of the members, in order to
remove obstructions from its legislative functions.

If a question of jurisdiction arises in a certain matter, it has to be decided by a ordinary court of

law in such as the jurisdiction to try a criminal offence such as murder, even if committed within
the House vests in ordinary courts and not in a of Parliament or in a State Legislature. Also, a
House of Parliament or State Legislature cannot be exercised in under Articles 105 and 194 of
the Indian constitution.

Right to exclude strangers

To ensure free and fair discussion in the house, the members of the house are given the power
and right to exclude the non-members of the house from the proceedings. If any breach is
reported by such strangers they can be punished in the form of admonition, reprimand, or
imprisonment.

Judicial approach to Parliamentary Privilege:-

The main questions which arise through this concept were, Can the exercise of privilege be
struck down if it violates a Fundamental Right? Would Fundamental Rights override the
privileges provided to the members of parliament?
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The Indian Judiciary has twin task to perform one is constructing the provision of the
Constitution and the second is safeguarding the Fundamental Rights of the citizens. The
privileges provided to the member of parliament forms an important part of their inherent rights
under the Constitution and are adopted to enable them to function in a smooth manner as they are
the representatives of the people.

G.K. Reddy v. Nafisul Hasan (1954) 5

In this case G.K. Reddy, the editor of the magazine Blitz was accused of contempt by the Uttar
Pradesh Legislature. A writ of habeas corpus was moved before the Supreme Court of India on
his behalf, alleging that his fundamental right has been violated under Article 22(2) of the
Constitution. In the Supreme Court, the Attorney General accepted the fact that G.K Reddy had
not been produced before a Magistrate within 24 hours of his arrest. The Supreme Court held
that yes, his Fundamental Right had been violated and ordered his immediate release. The Court
did not enter into the question of whether privileges would be subordinate to Fundamental
Rights.

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Pandit M.S.M. Sharma v. S.K. Sinha, 1959

After Five years, In the case of Pandit M.S.M. Sharma v. S.K. Sinha Supreme Court overruled
the judgement of GK Reddy case. In this case, Maheshwar Prasad Narayan Sinha, a member of
Bihar Legislative Assembly delivered a speech against the CM on the floor of the Assembly and
the Editor of Searchlight a English daily newspaper, was held guilty of contempt of the Bihar
State Legislature as his newspaper carried the report of the proceeding. The editor applied to the
Supreme Court defending this publication under the fundamental right of speech and expression
under Article 19(1)(a).

In this case it was held that the specific privileges under Article 194 of the Indian constitution
which are available to member of Parliament would override the fundamental rights of their

5
AIR 1954 SC 636
6
AIR 1959 S.C. 395.

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areas contained in Article 19(1). hence, the privileges of a state Legislature are not the subject to
Fundamental Rights.

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Markandey Katju v. Lok Sabha, 2016

The case of Markandey Katju v. Lok Sabha provides the latest interpretation of the power of
parliament privilege. The facts of the case were that, on 10.03.2015, the former Judge of this
Supreme Court posted an essay on his Facebook account in respect of Mahatma Gandhi titled as
“Gandhi – A British Agent” and stated that Mahatma Gandhi did harm to India. On the same day
he posted another article in respect of Netaji Subhash Chandra Bose referring to him as an agent
of Japanese fascism. Then on 11.03.2015, in Lok Sabha and Rajya Sabha a resolution was
moved which was passed unanimously by both the house.

Later 23.03.2015, Markandey Katju sent an e-mail to the Chairman of Rajya Sabha and to the
Speaker of Lok Sabha that the Resolutions condemning the statements made by him on
Mahatma Gandhi and Netaji Subhash Chandra Bose were passed by Rajya Sabha and Lok Sabha
without giving him any opportunity to express his views and according to the rules of Natural
Justice he should have been heard. But, the petitioner received no reply. Hence, he filled a
petition stating that deplorable or condemnable statements can only be judged by bodies
performing judicial function that is courts and cannot be decided by Rajya Sabha or Lok Sabha.
The petition demanded for the quashing of the aforesaid Resolutions.

The SC held that the the resolution made by the two houses had no civil consequences on the
conduct and the character of Markandey Katju is concerned. Hence, the petition was dismissed.

The treatment of ‘Exclusive Cognisance’ by Indian Courts

Exclusive cognisance is the right given to each of the houses of Parliament (Lok Sabha and
Rajya Sabha) to regulate their own proceedings and internal affairs without interference from

7
AIR 2017 2 SCC 384.

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outsiders. This consists of the conduct of its Members and participants of such proceeding such
as a witness before the committee. The utmost purpose of exclusive cognisance is to protect the
Parliament and its role as a legislative assembly. But autonomy at this level can violate the
principals of separation of power and balance of powers between the bodies.

Like the freedom of speech, the right of exclusive cognisance was initially asserted to protect
parliament against the mighty executive, but whit time it has developed into parliamentary
sovereignty. This exhibits that the courts cannot quash down Parliament’s decisions by
questioning the procedures used to reach the particular decisions, nor can they suspend someone
as a member of either House. Keeping this in mind the SC in the subcommittee case held that,
with the Constitution being supreme in India as opposed to Parliament, the doctrine could not be
so extended.

Raja Ram Pal Case, 20078

The facts of the case states that on 12.12.2005 on Aaj Tak some footage was shown which they
gathered through a sting operation ‘operation Duryodhana’ the footage showed certain members
of Parliament accepting bribes in order to the asking of questions in the Parliament. A committee
was set up for the inquiry of the same, The Committee viewed all the videos containing the
relevant video footage and also the unedited footage. In response to this Parliament then expelled
the said members on the ground that the conduct of the members was unethical and needs strict
actions. The expelled MP’s challenged the constitutional validity of the expulsion before the
Supreme Court.

The Court, in this case, secured for itself the power to review the exercise of privileges by
Parliament. The Court reserved for itself the power to review Parliamentary proceedings and
Rejected the Doctrine of Exclusive Cognisance of the Parliament, the Court also stated that the
doctrine was applicable only in England where Parliament was sovereign and had an unwritten,
flexible constitution. But not in India as it disturbs the system of checks and balances.

8
Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha JT 2007 (2) SC 1.

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Critical analysis
The methodology adopted by the Indian Judiciary and the Indian Legislature in the cases of
contention between the free speech as parliamentary privilege, that is provided under Article 105
and freedom of speech and expression as a fundamental right, under Article 19(1) (a) of the
constitution deserves an analysis. It can be traced through a series of cases that have been
discussed in the paper and shows that Parliamentary Privileges are considered to be more
important to than Fundamental Rights. Parliamentary Privileges impose more limitations on the
exercise of the right to freedom of speech and expression just to protect the interest of the
members of the parliament.

In the cases such as P.V. Narasimha Rao v. State, where conspirators of bribery were provided
with impunity. Even though when bribery is a codified offence under the Indian Penal Code,
1860 and even under the Prevention of Corruption Act, 1988. Providing immunity to such
conspirators of bribery is undesirable and unexpectable in the healthy functioning of a
democracy and is against the very principle of constitutionalism. It contemplates checks and
balances for putting the powers of the legislators and the executives under some restraint and not
making them uncontrolled and arbitrary.

Covering offences of such nature as bribery using Parliamentary Privilege as a veil reflects the
arbitrary nature of the legislators. Therefore, such actions harm the very spirit of Constitution
and is against the rule of law. In the case of Markandey Katju v. Lok Sabha which is one of the
latest cases it has be noticed that the approach of the judiciary has not changed over the years
regarding the concept of parliamentary privilege. Parliamentary Privileges are still more
fundamental and valued than the fundamental rights. The members of parliament being the
representatives of the people should always be open to face public criticism and should never
consider themselves to be superior to such criticism. It is very sad to see that the legislators
demand such a degree of immunity which even the highest branch of the Indian judiciary does
not enjoy. When the member of parliament and legislators are made by the people and for the
people, these people should also have the right to criticise them for there wrong deeds.

Conclusion
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● In the present scenario the Parliamentary Privileges prevail over Fundamental Rights when
there is a conflict between the two of them. Parliamentary Privilege is given more importanance
to maintain its supremacy.

● The doctrine of balance of power doesn’t exists between the Parliamentary Privileges and
Fundamental Rights. Are the former being dominant over the latter.

● This show cases that ‘sovereign people of India’ or " we the people of India" hold restricted
right to free speech under Article 19(1)(a) but ‘their servants or representatives’ who are elected
by them and for them have absolute freedom of speech in the parliament and the state
legislatures under Article 105 and Article 194 respectively .

● This concept of Parliamentary Privilege was adopted for the house of commons of UK, but
even after 70 years of independence, there has been no codification of the Privileges. Even
though this concept cannot be continued in India as we have a rigid Constitution and according
to it division of power and checks and balances of power should exist.

● The member of Indian parliament has way too wide power that is the immunity against the
offence of bribery, without any checks and balances which is against the spirit constitutionalism
and the concept of rule of law.

Suggestions:
● There is an urgent need of codification of the Parliamentary Privileges. As codification of
these privileges will reduce and limit their scope and the judiciary can also keep a check and
balance on the same. The Constitution Review Commission headed by Justice M.N.
Venkatachaliah had recommended that privileges should be defined and delimited for the free
and independent functioning of the legislatures.

● The restrictive interpretation of the Supreme Court regarding the freedom of speech subject to
legislative privileges is not accorporate according to the modern notions of human rights and
there is an urgent need of having a fresh look towards the question of freedom of press in relation
to parliamentary privileges.

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● The balance between the Fundamental Rights and Parliamentary Privileges must be re-
examined as parliamentary Privilege can also not overrule the fundamental rights. A bunch of
people cannot be given special privileges.

● Codification of the Parliamentary privileges would subject them to Fundamental Rights and
judicial scrutiny, and therefore the element of arbitrariness in the privileges can be removed and
instances of the evolution of privilege of the legislators would not come up.

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