Parliamentary privileges

Also called: Article 105, Article 194 · Topic: Parliamentary Procedure, Committees and Privileges · NCERT: Class 11, Ch 5 "Legislature"; Class 11, Ch 6 "Judiciary"

Meaning

Parliamentary privileges are special rights and immunities (protection from legal action) given to each House of Parliament or a state legislature, its committees and its members, so that they can do their work without obstruction. Members get them because the House needs them to function, not as personal favours. The Rajya Sabha's manual describes them as special rights that let members and the legislature carry out their constitutional functions effectively [3].

Explanation

Sources and the four clauses of Article 105

• Art. 105 covers Parliament. Art. 194 gives the same privileges to state legislatures.
• Art. 105(1): freedom of speech in Parliament.
• It is subject to the Constitution and to the rules of the House.

• Example of a limit: Art. 121 bars any discussion of the conduct of a Supreme Court or High Court judge, except on a motion to remove the judge.

• Art. 105(2): immunity from court action.

• No member can be taken to court for anything said or any vote given in Parliament or its committees.

• No one can be taken to court for publishing a report, paper, vote or proceeding under the authority of the House.

• Art. 105(3): other privileges.

• Parliament is meant to define these by law.
• Until it does, they stay as they were. Originally this meant the privileges of the UK House of Commons on 26 January 1950.
• The 44th Amendment (1978) removed the House of Commons reference. The content of the privileges did not change [7].

• Parliament has never passed this law, so most privileges are still not written down.

• Art. 105(4): extends clauses (1) to (3) to people who have the right to speak in the House, such as Union ministers and the Attorney General.

• The President is not covered. The President is part of Parliament but does not sit or speak in either House.

Types of privileges

• Individual privileges (each member has these):
• Freedom of speech in the House (Art. 105(1)).
• Immunity for speeches and votes (Art. 105(2)).
• Freedom from arrest in civil cases during a session and for 40 days before and 40 days after it (Code of Civil Procedure, s.135A). The same applies to committee sittings [3].

• Exemption from jury service, and from appearing as a witness in court while the House is sitting [3].

• Collective privileges (the House as a whole has these):

• Publishing its proceedings, or keeping them unpublished. Art. 361A and the Parliamentary Proceedings (Protection of Publication) Act 1977 protect true reports of open proceedings. A report made with malice is not protected.
• Excluding strangers and holding secret sittings.
• Making its own rules and running its own affairs (Art. 118).
• Punishing breach of privilege and contempt, by members or by outsiders.
• Being told at once when a member is arrested, detained or convicted.
• No arrest and no service of legal papers (civil or criminal) inside the precincts (the House's buildings and grounds) without the presiding officer's permission.
• Courts cannot question proceedings on the ground of procedural irregularity, meaning a failure to follow the House's own procedure (Art. 122).

Limits

• No protection from criminal arrest or preventive detention. Preventive detention means holding a person to stop a likely future offence, without a trial.
• Speech is limited by the rules of the House and by Art. 121.
• Art. 122 protects only procedural irregularity. Courts can still review proceedings that are illegal or unconstitutional (Raja Ram Pal, 2007).
• Bribery is not protected. A privilege must pass the necessity test, meaning it must be needed for the House to function. Taking a bribe is not needed (Sita Soren, 2024) [2][6].

Breach, contempt and how a privilege case moves

• Breach of privilege: violating one of the specific privileges. Example: arresting a member in the precincts without permission.
• Contempt of the House: any act or omission that obstructs the House, its members or its officers in their work. Examples:
• deliberately misleading the House;
• insulting the House;
• bribing or threatening a member;

• disobeying a committee's summons.

• Every breach is a contempt, but not every contempt is a breach. The House itself decides whether either one happened.

• Steps in a privilege case: 1. Notice. A member gives written notice to the Secretary-General. This is a privilege motion: a motion saying a privilege was breached or the House was held in contempt [3]. The rules are Lok Sabha Rules 222–228 and Rajya Sabha Rules 187–203 [3]. 2. Consent of the Speaker or Chairman. Consent is compulsory. The presiding officer checks only for a prima facie case, meaning the complaint looks valid enough at first sight to look into. They do not decide whether a breach actually happened [3]. Conditions for admission [3]:
  • only one question of privilege at one sitting;
  • it must be about a specific, recent matter;
  • the matter must need the House's intervention. 3. Leave of the House. The House can decide the matter itself. Or, on a motion by any member, it can send the matter to the Committee of Privileges [3]. 4. Suo motu reference. The presiding officer can also send a matter straight to the Committee on their own, without placing it before the House first [3]. 5. Committee inquiry. The Committee of Privileges works somewhat like a court. It examines the matter, hears the people involved and reports. In the Lok Sabha it has 15 members nominated by the Speaker. In the Rajya Sabha it has 10 members nominated by the Chairman and is headed by the Deputy Chairman. 6. The House decides the punishment by passing a motion. Punishments, from mildest to most severe:
  • admonition (a warning);
  • reprimand (a formal rebuke);
  • suspension;
  • expulsion (loss of membership);
  • imprisonment, which ends when the session ends.

In the Constitution and practice

• Constitutional and legal base:
• Art. 105 (Parliament) and Art. 194 (states).
• Art. 118 (rules of procedure), Art. 121 (bar on discussing judges) and Art. 122 (courts cannot question procedure).
• Art. 361A, added by the 44th Amendment (1978), and the Parliamentary Proceedings (Protection of Publication) Act 1977.

• CPC s.135A for freedom from civil arrest.

• Major punishments by the Houses:

• Subramanian Swamy, 1976: expelled from the Rajya Sabha for conduct that brought the House into disrepute [3].
• Indira Gandhi, December 1978: the 6th Lok Sabha found her guilty of breach of privilege and contempt for obstructing officials during an inquiry linked to the Maruti company. She was expelled and briefly jailed until the session ended [3]. The 7th Lok Sabha rescinded (cancelled) the resolution in 1981.
• Cash-for-query sting, December 2005: 11 MPs were expelled, 10 from the Lok Sabha and 1 from the Rajya Sabha, for taking money to ask questions [3].

• Mahua Moitra, 8 December 2023: expelled from the 17th Lok Sabha on the First Report of the Ethics Committee. The report found "unethical conduct" and "contempt of the House" for sharing her Members' Portal login with an unauthorised person, and conduct unbecoming of an MP for accepting gifts from businessman Darshan Hiranandani [4][5].

• Landmark judgments:

• M.S.M. Sharma v. Sri Krishna Sinha (Searchlight, 1959): privileges under Arts. 105(3) and 194(3) prevail over press freedom under Art. 19(1)(a).
• In re Keshav Singh (Special Reference No. 1 of 1964, decided 1965):
  • The UP Assembly jailed Keshav Singh for contempt and then ordered the arrest of the Allahabad High Court judges who gave him bail.
  • The President sent the question to the Supreme Court under Art. 143.
  • The Court held that courts can examine such jailing, that the House is not the sole judge of its own privileges, and that judges cannot be punished for hearing such cases.
• P.V. Narasimha Rao v. State (1998, 3:2): JMM MPs who took bribes and voted against the 1993 no-confidence motion were immune under Art. 105(2). An MP who took a bribe but did not vote was not immune.
• Raja Ram Pal v. Speaker (2007): upheld the 2005 expulsions. The Houses have the power to expel, but courts can review an expulsion for gross illegality, irrationality or unconstitutionality.
• Sita Soren v. Union of India (4 March 2024, 7 judges) [2][6]:
  • The case was about a JMM MLA accused of taking a bribe to vote in the 2012 Rajya Sabha election. The Court overruled Narasimha Rao.
  • No immunity under Art. 105 or 194 from prosecution for bribery linked to a vote or speech.
  • The offence is complete when the bribe is accepted, whether or not the vote is cast as agreed.
  • The Court called the 1998 view a "grave danger" to honesty in public life.

Don't confuse with

• Breach of privilege vs. contempt of the House: a breach violates a specific listed privilege. Contempt is any obstruction of the House. Contempt is the wider category, so every breach is a contempt but not every contempt is a breach.
• Committee of Privileges vs. Ethics Committee: the Privileges Committee examines breach and contempt. The Ethics Committee examines members' moral conduct, which may not be a breach of privilege. The Rajya Sabha set its up in 1997 [3] and the Lok Sabha in 2000.
• Freedom from civil arrest vs. criminal arrest: members are protected from civil arrest during a session and 40 days before and after it. They have no protection from criminal arrest or preventive detention.
• Art. 122 vs. full immunity from courts: Art. 122 bars courts only on procedural irregularity. Illegal or unconstitutional acts of the House can still be reviewed (Raja Ram Pal, 2007).

Prelims Hooks

• Art. 105(4) extends privileges to the Attorney General and ministers, but not to the President.
• The 44th Amendment (1978) removed the UK House of Commons reference from Arts. 105(3) and 194(3) and added Art. 361A (protection for publishing proceedings).
• Freedom from arrest covers civil cases only, during a session and 40 days before and after it (CPC s.135A).
• Committee of Privileges: Lok Sabha 15 members; Rajya Sabha 10, headed by the Deputy Chairman. Privilege rules: Lok Sabha 222–228, Rajya Sabha 187–203 [3].
• Sita Soren (2024, 7 judges) overruled P.V. Narasimha Rao (1998). The bribery offence is complete when the bribe is accepted, whether or not the vote is cast [2].
• Trap: Keshav Singh (1964) reached the Supreme Court as a presidential reference under Art. 143, not as an appeal. Expulsions: 1976 (Swamy, Rajya Sabha), 1978 (Indira Gandhi, Lok Sabha, rescinded in 1981), 2005 (11 MPs).

Mains Points

• Codification under Art. 105(3):
• For a law: more than 75 years without one leaves privileges vague. Houses can punish critics and journalists while acting as judge in their own cause. A written law, perhaps on the model of Australia's Parliamentary Privileges Act 1987, would bring certainty and protect press freedom under Art. 19(1)(a).

• Against a law: Houses would lose the flexibility to deal with new kinds of obstruction. A written law would also face Art. 13 review, so courts could strike it down if it violated Fundamental Rights.

• Privileges and Fundamental Rights, an evolving balance:

• Searchlight (1959) made press freedom give way to privilege.
• Keshav Singh (1964) and Raja Ram Pal (2007) brought privileges under limited judicial review.

• Sita Soren (2024) added the necessity test. The shift is from "the House alone decides" to "privileges exist for the House's work, not for members' personal benefit".

• Due process in privilege and ethics inquiries:

• The 2023 Moitra expulsion raised concerns [5]:
  • she could not cross-examine her accusers;
  • there was no written code of conduct;
  • the decision followed party lines.
• Reform options:
  • a statutory code of conduct;
  • the right to a lawyer and to cross-examination;
  • committees with members from all parties, or an independent ethics commissioner like the UK's Parliamentary Commissioner for Standards.

Related concepts

• Individual privileges
• Collective privileges
• Bar on courts inquiring into parliamentary proceedings
• Breach of privilege
• Contempt of the House
• Privilege motion
• Committee of Privileges
• Ethics Committee
• Keshav Singh case
• Raja Ram Pal case

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• Parliamentary privileges, contempt and ethics