Protecting the freedom of speech of MPs

Protecting the Freedom of Speech of MPs

UPSC Prelims + Mains Study Note | Topic: Parliamentary Privileges & Article 105

1. At a Glance

• Article 105 of the Constitution guarantees freedom of speech to Members of Parliament inside the Houses and their committees — a cornerstone of parliamentary democracy and legislative independence. [S1]
• The freedom is not absolute: it is expressly subject to "other provisions of the Constitution" and the rules of each House. [S1]
• A critical constitutional question has emerged: can House rules effectively override or eclipse the fundamental speech rights of MPs under Article 105? [S4]
• UPSC relevance: maps to GS-II (Parliament, constitutional provisions, separation of powers, SC judgments); frequent source of MCQs and Mains questions on parliamentary privilege.

2. Why in the News

• February 2026, Budget Session: Leader of the Opposition in Rajya Sabha, Mallikarjun Kharge, wrote to Chairman C.P. Radhakrishnan alleging that a substantial portion of his speech delivered on 4 February 2026 — during the Motion of Thanks to the President's Address — was expunged without adequate justification. [S3]
• Kharge contended that the expunged remarks were neither unparliamentary nor defamatory and did not violate Rule 261 of the Rajya Sabha Rules; he argued the deletions violated his constitutional right under Article 105(1), particularly given his position as Leader of the Opposition. [S3]
• The Chairman ruled that Kharge's comments accusing the Chair of "protecting Modi ji" were inappropriate for a senior Member and would not be placed on record. [S3]
• The incident reignited debate on how far presiding officers' expunction powers can extend and whether excessive use of those powers eclipses the constitutional right of free speech. [S4]

3. Background & Evolution

4. Core Static Facts

Constitutional Provisions

• Article 105(1): Subject to provisions of the Constitution and rules of procedure, MP shall have freedom of speech in Parliament. [S1]
• Article 105(2): No MP shall be liable to any court proceedings in respect of anything said or vote given in Parliament or any committee thereof. [S1]
• Article 105(3): Powers, privileges, and immunities of each House shall be those as Parliament may by law define; until then, those enjoyed by UK House of Commons before commencement of Constitution (as modified by 44th Amendment, 1978). [S2]
• Article 194: Mirrors Article 105 for State Legislative Assemblies/Councils.

Key Rules

• Rule 261, Rajya Sabha Rules of Procedure: Empowers the presiding officer (Chairman) to expunge from official records words deemed "defamatory, indecent, unparliamentary or undignified." [S3]
• Lok Sabha: Analogous expunction powers vest in the Speaker under Rule 380 of Lok Sabha Rules of Procedure and Conduct of Business.

Key Terminology

Implementing/Administering Authority

• Lok Sabha: Speaker (under Lok Sabha Rules)
• Rajya Sabha: Chairman (Vice President of India) (under Rajya Sabha Rules)
• Privilege Committees: Lok Sabha Privilege Committee; Rajya Sabha Privilege Committee — examine alleged breach of privilege.

5. Multi-Dimensional Analysis

Legal / Constitutional

• Article 105 immunity is sui generis — separate from and broader than Article 19(1)(a) (ordinary citizen's freedom of speech); courts have no jurisdiction over speech made inside the House (Searchlight case, 1959). [S2]
• The 2023 Sita Soren judgment (7-judge bench) narrows privilege: immunity under Article 105(2) does not extend to acts of bribery even if connected to parliamentary voting. [S1]
• The Supreme Court has repeatedly held that restrictions on fundamental rights must not eclipse those rights themselves — a principle the article argues must equally govern how House rules limit MPs' speech. [S4]
• The current framework creates a constitutional paradox: the rules made under the Constitution are being used to restrict a right guaranteed by the same Constitution.

Ethical / Governance

• Presiding officers exercise unilateral, subjective expunction power with no mandatory prior hearing of the member concerned — raising natural justice concerns. [S3][S4]
• Asymmetric application of expunction (disproportionately affecting Opposition leaders) erodes institutional trust in the impartiality of the Chair. [S4]
• The absence of a codified privilege statute (no law enacted under Article 105(3) since 1950) leaves much to convention and the presiding officer's discretion. [S2]

Historical

• British origin: the privilege of free speech in Parliament dates to the Bill of Rights, 1689 (England) — "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." [S2]
• India adopted this wholesale in 1950; the 44th Amendment (1978) freed Indian Parliament from future dependence on evolving UK Commons practices. [S2]

Administrative

• No apex Privilege Statute exists; this is a significant institutional gap — Parliament has never exercised the law-making power under Article 105(3). [S2]
• Presiding officers' decisions on expunction are final and non-justiciable under Article 122 (courts cannot enquire into proceedings of Parliament) — limiting judicial remedy for aggrieved MPs. [S2]
• The Leader of the Opposition has a special constitutional/statutory status (Salary and Allowances of Leaders of Opposition in Parliament Act, 1977) — the article argues this elevated role demands heightened protection of speech rights. [S4]

Political / Democratic

• Freedom of speech of Opposition MPs is the oxygen of parliamentary democracy — its restriction directly impacts legislative scrutiny of the executive.
• Repeated expunctions of Opposition leaders' speeches can amount to silencing dissent under the cover of procedural rules. [S4]
• Former Secretary-General of Lok Sabha P.D.T. Achary argued (Feb 2026) that "too many restrictions" imposed on freedom of speech of members, particularly Opposition leaders, crosses constitutional limits. [S4]

6. Recent Developments (Last 12–18 Months)

• 4 February 2026: Mallikarjun Kharge delivers speech in Rajya Sabha during Motion of Thanks to the President's Address. [S3]
• February 2026 (Budget Session): Chairman C.P. Radhakrishnan expunges substantial portions of Kharge's speech; Kharge writes to the Chairman seeking restoration, asserting violation of Article 105(1) and Rule 261 being misapplied. [S3][S4]
• 23 February 2026: P.D.T. Achary (former Secretary-General, Lok Sabha) publishes analysis in The Hindu arguing that House rules cannot override constitutional rights of MPs under Article 105. [S4]
• Ongoing (2025–26): Multiple instances of speech expunctions and microphone muting of Opposition MPs in both Lok Sabha and Rajya Sabha reported across sessions — part of broader trend since 2023. [S3]
• 2023: Supreme Court's Sita Soren v. Union of India — 7-judge bench recalibrates scope of Article 105(2) on bribery-linked votes, a landmark re-statement of privilege boundaries. [S1]

7. Prelims Hooks

1. Article 105 of the Constitution deals with the powers, privileges, and immunities of Parliament and its members; the analogous provision for State Legislatures is Article 194. [S1]
2. Article 105(2) grants immunity from court proceedings for anything said or any vote given by an MP in Parliament or any committee thereof. [S1]
3. The 44th Constitutional Amendment (1978) modified Article 105(3) — Parliament's privileges are no longer permanently linked to those of the UK House of Commons. [S2]
4. No law has been enacted under Article 105(3) since the Constitution came into force in 1950; pre-amendment UK House of Commons conventions continue to apply by default. [S2]
5. Rule 261 of the Rajya Sabha Rules of Procedure empowers the Chairman to expunge words that are "defamatory, indecent, unparliamentary or undignified" from parliamentary records. [S3]
6. The Rajya Sabha Chairman (ex officio: Vice President of India) and the Lok Sabha Speaker are the respective presiding officers with expunction powers. [S1]
7. Under Article 122, courts cannot inquire into proceedings of Parliament — making expunction decisions of presiding officers non-justiciable. [S2]
8. The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 gives statutory recognition to the Leader of the Opposition in both Houses. [S4]
9. In P.V. Narasimha Rao v. State (1998), the Supreme Court (5:3) held that MPs who accept bribes but vote as agreed have immunity under Article 105(2) — overruled by a 7-judge bench in Sita Soren v. Union of India (2024). [S1]
10. The principle that restrictions on rights must not eclipse the rights themselves (stated by the Supreme Court regarding fundamental rights under Part III) applies equally to Article 105 freedoms. [S4]
11. Parliamentary privilege of free speech originates from the English Bill of Rights, 1689, adopted into Indian constitutional law via British Westminster conventions. [S2]
12. A Privilege Committee (in both Houses) examines cases of alleged breach of parliamentary privilege and recommends action. [S1]
13. Article 105(1) makes an MP's freedom of speech subject to: (a) other provisions of the Constitution, and (b) rules and standing orders of the House — NOT to ordinary legislation. [S1]

8. Mains Relevance

GS Paper: GS-II

Syllabus Headings: - Parliament and State Legislatures — structure, functioning, conduct of business, powers and privileges - Separation of powers between various organs; dispute redressal mechanisms and institutions - Constitutional provisions and challenges related to fundamental rights

Plausible Mains Question Stems:

1. "The rules of the Houses of Parliament are meant to regulate proceedings in accordance with the Constitution, not to override it." Critically examine the tension between presiding officers' expunction powers and the freedom of speech of MPs under Article 105.

2. Discuss the scope and limitations of parliamentary privilege in India with reference to landmark Supreme Court judgments. How does the absence of a codified privilege statute affect parliamentary democracy?

3. The role of the Opposition in Parliament is constitutionally indispensable. Examine how parliamentary rules and practices may, in practice, impair the freedom of speech of Opposition leaders, and suggest reforms.

9. Related Topics to Study Next

10. Common Errors / Trap Areas

1. Article 105 vs. Article 19(1)(a): Aspirants confuse the two. Article 105 is a separate, wider protection specific to MPs inside Parliament; it is not derived from or equivalent to Article 19. Courts cannot restrict it the way they can restrict Article 19 rights.

2. "Subject to rules" ≠ Rules override Constitution: The phrase "subject to rules of the Houses" in Article 105(1) does NOT mean House rules can curtail or eclipse the constitutional right — a common misreading the Kharge controversy exposed. [S4]

3. 44th Amendment confusion: Students sometimes think the 44th Amendment (1978) removed parliamentary privilege. It actually delinked privilege from automatic updating per UK House of Commons practices — Parliament retains all prior privileges.

4. Narasimha Rao case status: Many still cite P.V. Narasimha Rao (1998) as good law on bribery immunity. It was overruled in 2024 (Sita Soren); the current position is that bribery to vote/speak is not protected under Article 105(2).

5. Expunction = erasure from Hansard only, not criminal action: Expunction removes words from official records; it is distinct from suspension of a member, privilege motion proceedings, or criminal contempt — aspirants often conflate these.

11. Sources

• [S1] Questions of Privilege — PRS India — https://prsindia.org/articles-by-prs-team/questions-of-privilege — (Tier 1)
• [S2] Parliamentary Privileges 2022 — Rajya Sabha Secretariat — https://cms.rajyasabha.nic.in/UploadedFiles/ElectronicPublications/Parliamentary_Privileges_2022.pdf — (Tier 1)
• [S3] Expunction Powers in Parliament (Kharge–Radhakrishnan incident, February 2026) — Various IAS prep aggregators synthesising parliamentary proceedings — https://pwonlyias.com/current-affairs/expunction-powers-in-parliament/ — (Tier 4 equivalent/current affairs)
• [S4] P.D.T. Achary, "Protecting the freedom of speech of MPs" — The Hindu, 23 February 2026 — https://www.thehindu.com/todays-paper/2026-02-23/th_international/articleGQ1FKGI8C-13620043.ece — (Tier 4)