TOPIC 4 Indian Parliamentary Privileges

09/01/2011 22:00


Indian Parliamentary Privileges

In democracy, popularly elected institutions such as the Parliament or State Legislative Assemblies represent the will of people. They perform the important function of law making which forms the basis of functioning of a democratic political system. In order to enable the members of Parliament to perform their functions without any prejudice or pressure, the members are given certain rights and special treatment, which are known as Parliamentary privileges. In fact privileges are those rights which are available to a class of persons but not available to others. According to Sub hash Kashyap, a noted authority on Parliament, privilege means a special or exceptional right or freedom or an immunity enjoyed by a particular class of persons or some individuals. It is special in the sense that it is a right or freedom which is not available to the rest of the people. 

The Parliamentary privileges are available only to two Houses, their members and their Committees. Though the President is a part of the Parliament he is not covered by these privileges. However, the President enjoys immunity on certain criminal and civil matters as specified in the Constitution. The rationale behind granting these privileges is that they enable the members of Parliament and its Committees to maintain their independence of action and dignity of position, while performing their duties or discharging their responsibilities. 

It should be noted that the privileges are available to members of Parliament and its Committees only during the period and to the extent they are performing their duties and responsibilities as member of the Parliament. Again, the members are not, however, exempted from the operation of ordinary laws of the land. When members are not performing their official duties, it is held that no breach of privilege or the contempt of the house is committed. Further, it should .be noted that the members do not enjoy any exemption from the operation of ordinary laws of land. 

Constitutional Provisions

-The privileges of members of Parliament are derived from three sources. First, there are certain privileges which are mentioned in the Constitution itself. Second, some of the privileges are specified in Statutes and the Rules of Procedure and Conduct of business in the Lok Sabha. Third, some of the privileges are derived from the precedents and conventions developed over a period of time. 

Some of the privileges of the members of Parliament are mentioned in Article 105 of the Constitution, while the privileges of members of Legislative Assembly are mentioned in Article 194 of the Constitution. Article 105 provides the following: 

(i) Subject to the provision of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(ii) No member of Parliament shall be liable to any proceeding 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 proceeding. 
(iii) In other respects the power, privileges and immunities of each House of Parliament and of the members and of 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 its members and Committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act 1978. 

(iv) The provisions of clauses (i), (ii) and (iii) shall also apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceeding of a House of Parliament or any Committees there of as they apply in relation to member of Parliament. It should be noted that before the Forty-Fourth Amendment, 1978, clause three of Article 105 provided that the privileges of members of Parliament were to be the same (with respect to the matters not mentioned in the Constitution) as those of British House of Commons, its members and Committees at the commencement of the Constitution until our Parliament defined them by law. The 44th Amendment has made only verbal changes in the position of privileges as even now without the reference of British House of Commons, the members of Parliament in India enjoy the same type of privileges as its counterpart in Britain because the privileges of Parliament are not defined by law by Parliament so far. Thus, after the 44th Amendment, there would be no mention of the term the British House of Commons in Article 105. 

Important Privileges

-The privileges of Parliament and its members are not codified so far. Some privileges expressly mentioned in Article 105 have been mentioned earlier. On the basis of parliamentary practices, established conventions, legal provisions and opinion of constitutional experts, the following privileges of Parliament and its members can be listed: 

1.   Freedom of speech inside the parliament Article 105 (1).

2.  Immunity from court proceedings available to members of Parliament with respect to anything said or any vote cast by a member or anything published under the authority of parliament-Article 105 (2).

3.  According to the provisions of Article 122, courts are prohibited to inquire into proceedings of Parliament. In other words, the courts can not question the legal validity of parliamentary proceedings.

4.   It is provided in the section 135 A of the code of civil procedure that a member of Parliament shall not be arrested during the continuance of the session of the House, 40 days before the commencement of the Session and 40 days after the date of the conclusion of the session.

5.   Members of Parliament are exempted from the obligation to serve as juries.

6.  According to the Rules 232 and 233 of the Rules of procedures of the Lok Sabha the immediate information is to be given to the House by the concerned authorities about the arrest or the release of a member of the House. The same rules also provide that a member of the Lok Sabha can not be arrested within the premises of the House without the prior permission of the Speaker.

7.  Rule 252 of the Rules of procedure of the Lok Sabha provide that the House is not liable to disclose the proceedings or decision of a secret sitting of the LokSabha.

8.  The members and other officers of the House (Lok Sabha) can not be compelled to appear as witness before the other House or the state Legislature. However, they can act as witness with their consent.

9.  Also the officers and members of the Lok Sabha can not be compelled to give evidence before any court of Law without the permission of the House, with respect to any matter regarding the proceedings of the House.

10.           The Parliamentary commIttees have the power to sununon persons, papers and. records relevant for an inquiry undertaken by the committee. The committee may also administer oath to the persons appearing as witnesses. The evidence submitted before the committee can not be disclosed before the Report of the committee has been laid on the Table of the House.

11.            In addition to the above privileges, the House as a collective entity also enjoys certain consequential privileges such as committing persons for the breach of the privileges of the House, compelling attendance of person as witnesses, regulating its own procedure, restricting publication of its debates and proceedings or to exclude strangers from the gallery of the House.

It should be noted that the most important privilege enjoyed by a member of Parliament is the freedom of speech inside the Parliament. Though, the right to freedom of speech is available to citizens also, it is subject to certain restrictions imposed under Article 19 (2). However, the members of Parliament are even free from these restrictions, while speaking inside the House. No action can be taken against them in any court of Law. 

This was upheld by the, Supreme Court in the famous 'searchlight' case. Even if the speech of a member is tantamount to the contempt of the court, no action can be taken against such member in any court. In such matters, the house itself is authorised to take appropriate disciplinary action against the concerned member. The rationale behind such extensive freedom of speech given to members is to enable them to express themselves before the House without any fear or prejudice. 

In this respect it should be noted that certain restrictions are also imposed by the Constitution on the debates of Parliament. Thus, article 121 of the Constitution provides that no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or the High Courts except upon a motion for the removal of the judge is under consideration in the House. There is no distinction between the privileges of the two Houses. Same privileges are available to the members of the both Houses of Parliament. Similar privileges are also available to the members of state Legislatures. 




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