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In the heart of India’s Constitution, Article 105 shields Members of Parliament by giving them certain privileges.


In the heart of India’s Constitution, Article 105 shields Members of Parliament by giving them certain privileges. This protection is crucial—it allows MPs to speak their minds freely during debates and decision-making without fear of consequences. These privileges are designed to keep lawmakers free from outside pressures so they can do their job effectively.

Yet, this raises a burning question: Are these privileges an unfair advantage? What happens when they clash with the rights of the people? Where should the line be drawn? Can it supersede the basic rights that all citizens hold dear when the two collide?

The Supreme Court has endeavoured to tackle this issue by introducing the concept of “harmonious construction.” This means striking a balance between MPs’ privileges and the rights of citizens, much like walking on a tightrope, ensuring that neither of them falls off. According to Article 105(2), MPs are not liable for “anything said…in Parliament,”[1] which essentially means that they are immune to legal action for their statements during sessions. Despite this broad protection, it is essential to remember that MPs are supposed to be the voice of the people, and their power stems from the Constitution, which emphasizes that privileges and rights should work in unison.

In this blog, we will delve into why it is time to reconsider the courts’ “one-size-fits-all” protection of parliamentary privileges and adopt a more equitable approach that respects the rights of citizens as much as it does those of MPs.


The Supreme Court often invokes the idea of harmonious construction when fundamental rights and parliamentary privileges clash. They have acknowledged that essential rights like life, liberty (Article 21), and free speech (Article 19) may be affected by MPs’ privileges. Therefore, they need to examine these situations on a case-by-case basis. The court’s interpretation of Articles 21 and 19 has evolved over time, drawing inspiration from landmark cases such as those involving Francis Coralie Mullin[2], Aruna Shanbaug[3], and K.S. Puttaswamy.[4] These cases have played a crucial role in expanding our constitutional rights.

The 42nd Amendment made significant changes to Art. 105(3) and 194(3) of the Indian Constitution. The process of substitution involved the deletion of the existing provision and its replacement with a new one. In this case, the word “House of Commons” was deleted through the 42nd Amendment, but the 44th Amendment restored it to its original position. As a result of this substitution brought about by the 42nd and 44th Amendments, the source of Arts. 194(3) and 105(3) is no longer the original Constitution but a Constitutional Amendment. The Basic Structure theory dictates that any Constitutional Amendment conflicting with the fundamental principles of the original Constitution is deemed unconstitutional. This ensures the preservation of the Constitution’s core tenets, maintaining a coherent and consistent legal framework.


In India, any proposed amendment that violates the fundamental structure of the Constitution is not permissible. The Indian Parliament is required to comply with the Constitution’s regulations, unlike Britain’s Parliament. It is not feasible to assume that British parliamentary privileges can be simply transplanted here, compromising our fundamental rights. Any privileges conferred upon Indian MPs must conform to the Constitution. A look at other countries that were once British colonies, such as Zimbabwe[5] and South Africa[6], shows that when parliamentary authority and constitutional rights clash, constitutional rights typically prevail. The judiciary ensures that constitutional rights are protected and enforced.


As per the verdict of the Supreme Court, the Constitution’s “Basic Structure”[7] comprises Articles 14, 19, and 21, I.R. Coelho v State of Tamil Nadu[8] ruled that the basic structure of the constitution is to be inter alia found in Arts. 14, 19 and 21 and the principles underlying therein. In explaining why Arts. 14, 19 and 21 are the indelible constituents of the Basic Structure of the Constitution, Sabharwal, C.J.I. notes: Dealing with Arts. 14[9], 19[10] and 21[11] in the Minerva Mills [12]case, it was said that these clearly form part of the Basic Structure of the Constitution and cannot be removed. It was also observed that Articles 14, 19, and 21 of the Constitution stand as a bridge between the freedom Tagore envisioned for India and the potential for unrestrained power. These Articles occupy a unique position, confirming that fundamental rights are an integral part of the Constitution’s basic structure.

The Supreme Court’s judgment in Coelho established that any amendment made after April 24, 1973, that attempts to restrict the fundamental rights enshrined in Articles 14, 19, and 21 would be unconstitutional. This is because these fundamental rights are considered essential components of the Constitution’s basic structure.

Consequently, legal norms derived from Articles 105(3) and 194(3) owe their existence to a constitutional amendment. As constitutional amendments, Articles 105(3) and 194(3) are subject to the test of the basic structure doctrine. Since fundamental rights are part of the basic structure, any conflict between these amendments and Articles 21, 19 and 14 would result in the latter prevailing.


The clash regarding parliamentary privileges is rooted in the absence of a clear rulebook for such privileges. In the pivotal case of M.S.M Sharma v. Sri Krishna Sinha, [13]Justice K. Subba Rao elucidated the intricate relationship between parliamentary privileges and constitutional constraints. His argument for interpreting Article 194(3) within the broader constitutional context, particularly in light of fundamental rights, initiated a significant discourse on the uncodified nature of these privileges. This lacuna necessitates reliance on British Parliament precedents, raising concerns about unchecked parliamentary authority.[14] The submission emphasizes the risk of arbitrary citizen punishment without transparently defined privileges, echoing the dissenting view in Sharma that prioritized fundamental rights over uncodified privileges.[15] This underscores the delicate balance between legislative powers and the safeguarding of citizen rights within the constitutional landscape. Therefore, codification is the need of the hour.


Balancing parliamentary privileges and fundamental rights is a complex issue that demands a delicate approach. It’s essential to ensure neither side is unfairly favoured. An important guiding principle is India’s Supreme Court’s doctrine of harmonious construction. This principle ensures that elected representatives’ voices aren’t silenced while safeguarding individual liberties, which are the core of our constitutional democracy.

The Basic Structure doctrine makes it clear that fundamental rights are supreme in our legal system. The judiciary serves as a crucial safeguard against parliamentary overreach, ensuring the protection of fundamental rights. Clearly defined and codified parliamentary privileges are essential for establishing a definitive framework that enables both MPs and citizens to function with confidence and mutual respect.

Ultimately, we aim to create a robust democratic environment that upholds the rule of law. Every citizen, including those in Parliament, must be equally bound by the rights and responsibilities woven into the fabric of our Constitution. As India continues to evolve, we must understand and implement these constitutional doctrines, ensuring they meet the contemporary needs of our society while preserving the foundational pillars on which our nation was built.

Author(s) Name: Abhinav Patel (Dr. Ram Manohar Lohia National Law University)


[1] Tej Kiran Jain v Sanjiva Reddy, AIR 1970 SC 1573

[2] Francis Coralie Mullin v Administrator Union Territory of Delhi, (1981) 1 SCC 608

[3] Aruna Ramachandra Shanbaug v Union of India, (2011) 4 SCC 454

[4] K.S. Puttaswamy v Union of India, (2017)10 SCC 1

[5] Mutasa v Mokobe, 1998 (1) SA 397 (ZSC)

[6] Speaker of the National Assembly v Patricia De Lille MP, 1999 (4) SA 863 (SCA)

[7] Kesavananda Bharati v Union of India, AIR 1973 SC 1461

[8] I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1

[9] The Constitution of India, Art.14 

[10] The Constitution of India, Art.19

[11] The Constitution of India, Art.21

[12] Minerva Mills Ltd v Union of India, AIR 1980 SC 1789

[13] M.S.M Sharma v Sri Krishna Sinha, AIR 1954 SC 636

[14] Kavya Arora, ‘Legislative Privileges: The Exercise of Indefinite Powers to Curtail the Voice of Democracy’ (Bar and Bench, 27 October 2020), <> accessed 04 May 2024

[15]Akhtar Ali Khan, ‘Power, privileges and immunities of Parliament: need for codification’ (The Indian Journal of Political Science, 08 August 2010) <file:///C:/Users/Abhinav%20Patel/Downloads/THE%20CONFLICT%20BETWEEN%20FREEDOM%20OF%20Tpress> accessed 04 May 2024