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Parliamentary privilege: absolute or relative immunity?

Freedom is absolute when one has access to a fearless and non-hesitant platform for self-expression. In Indian Constitution, Article 105 in mutatis mutandis with Article 194 confers special


Freedom is absolute when one has access to a fearless and non-hesitant platform for self-expression. In Indian Constitution, Article 105 in mutatis mutandis with Article 194 confers special rights, immunities, and exemptions to the MPs & MLAs, respectively. Power is always prone to waste and abuse. So, in reality, absolute freedom can become the hotbed of extreme dictatorship. Moreover, the freedom to exercise power can be instrumental in curtailing the freedom of others. Therefore, the privilege and immunities enjoyed by Lok Sabha, Rajya Sabha, and state legislature members came under the scrutiny of the two truth-seeking pillars of democracy; judiciary and media. The biggest flaw in our constitution remains the deliberate non-codification of parliamentary privilege. The National Commission to Review the Working of the Constitution (NCRWC) in 2002 and the Indian Press Commission on many occasions demanded delimitation and codification of privileges. But the Indian legislature has been reluctant to codify their privileges for years as it will expose them to judicial scrutiny. Is their immunity under the umbrella of parliamentary privilege absolute or relative?


Article 105 entitles the privilege collectively for each of the two houses of Parliament, individually for each member, and all the functionaries and committee members under the Parliament. The President of India, though acting as the head of two houses of parliament, is not entrusted with this privilege. Similarly, Article 194 is meant to confer the right to the state legislature. Clarifying these privileges has been demanded since the drafting stage of the Indian Constitution. Professor Shibban Lal Saksena suggested an appendix of privileges to the draft constitution and mentioned that “We must therefore define the privileges enjoyed by the members of the House of Commons and put them as an appendix to our constitution so that Members will know what these privileges are.”

However, the Privileges were fixed under clause (3) of both Articles as follows:

“Shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.”  

Shri H.V. Kamath moved a motion concerning the clause. He criticized why, even after independence, it referred to the follow-up of the House of Commons of another country. He said it would keep the dignity of our constitution more intact if it had been drafted following our precedent or tradition. All these pragmatic contexts were trivial to most constitution-makers interested in idealistic greatness. Summarizing all the discussions on Articles 85 and 169 corresponding to the existing Articles 105 and 194 during the drafting of the Constitution, Dr B.R. Ambedkar said: more than 25 pages are required to enlist all the power, privilege, and immunities. What he felt was unnecessary. He said, “Except for sentimental objection to the reference to the House of Common” of the UK, there was nothing “substantial.”

However, later, Section 15 and Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978, have substituted the related version with the present Clause (3) of Article 105 and Clause (3) of Article 194, respectively. Parliament has yet to feel the need to prepare a list of privileges on its initiative, and it can be realized that the task of composing the boundary of absolute freedom attained, like the great Kalidasa, would be like sitting on a branch and cutting it.


In a nutshell, we can count the privileges in the following special rights, exemptions, and immunities:

Though no special law has been made, the privileges are rooted in five sources, namely, the provisions of the Constitution, Parliamentary Laws, Parliamentary Conventions, Rules of Loksabha and Rajyasabha, and interpretations of the judiciary.


Apart from the Interpretation of the Judiciary, the other four sources of parliamentary privilege are controlled by the sole authority of Parliament. Therefore, the importance of judicial interpretation in the question of impartiality and fact-finding of the privileges of Parliament in the correct sense is the greatest. For this reason, I refer to some of the debates on the nature of parliamentary privilege established through the judicial interpretations that have taken place so far.

  • Should public representatives express themselves freely without fear of legal consequences?

In Tej Kiran Jain v. N. Sanjiva Reddy (1970) 2 SCC 272, Speaker Shri Sanjiva Reddy and some members (Respondents) during a parliamentary motion called Shankaracharya, Puri, a renowned spiritual leader who supported casteism through his speech and reportedly left a religious conference while the national anthem was being played, as the leperous (Sic) dog. After a thorough interpretation of Article 105(2), the Supreme Court held that the word “anything” literally means “everything.” “In Parliament” represents the proceedings of Parliament. The court held that as Parliament was in motion, anything said was immune from any court proceedings. One of the foundations of the parliamentary system of government is that people’s representatives should express their opinions freely without fear of the law. Their speech and conduct are subject only to the rules and regulations of the Parliament. Members will feel comfortable, and the Speaker will moderate the proceedings. Courts have no jurisdiction over the matter and should not have.

  • Whether the legislature is the unitary and exclusive judge of its privileges?

A historic 28-judge High Court of Allahabad bench dealt with the question in 1964, finally decided in the Supreme Court upon a Presidential Reference in 1965, the case of Keshav Singh vs. Speaker Legislative Assembly. Keshav Singh, a member of the Socialist Party, distributed a pamphlet against a Congress party leader in Gorakhpur and adjoining areas. The MLA moved a motion against the person in the state assembly under parliamentary privilege. The Speaker called Keshav Singh and his associates to the assembly for a hearing, but he said he could not travel from Gorakhpur to Lucknow due to a lack of money. To decide on the move initiated by Chief Minister Sucheta Kripalani on this issue in the assembly, the Speaker considered this an insult to the State Assembly and ordered Keshav Singh to be arrested. Finally, he was imprisoned for seven days for not apologizing. On the sixth day of imprisonment, Keshab Singh moved High Court challenging the Speaker’s decision. Two Judges bench of the High Court heard the Writ of Habeas Corpus and granted him bail. Knowing this, the speaker ordered an arrest of the High Court Judges and the Lawyer who pleaded for Keshab Sing. As a result, the dispute raises the question of Judicial jurisdiction and the privilege of the legislature. The Acting Chief Justice of the High Court assumed that whichever judges the case was assigned to; the Speaker would also summon them. So he constituted a bench of all the judges except the two accused judges to hear the case. The court gave a stay on the order of the assembly. The matter reached the Supreme Court on the President’s reference under Article 143. Here comes a clash between Article 194 on privileges of the legislature house and Article 211 of the Constitution, which prohibits any discussion by the Assembly on the conduct of judges of the Supreme Court and High Courts. The Supreme Court wisely considered the fundamental right of protection of life and liberty of Article 21 above Article 211 or Article 194. With a 6:1 majority, the Supreme Court opined that the High Court, under Article 226, has the power to adjudicate writ petitions and, therefore, the two Judges are not guilty of any contempt to the assembly. The Court observed there is no doubt that Parliament is the sole and exclusive judge of its privilege under Article 194(3), and this fact would not be in dispute. But the concern is whether the privilege of the houses was provided by Article 194(3). This question remained to be determined by the Court.


All the rights and privileges of the organs of the State should be harmonious, collaborative, and clearly defined. NCRWC thus prudently recommended, “The privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and State Legislatures. It should not be necessary to run to the 1950 position in the House of Commons every time a question arises as to what kind of legal protection or immunity a member has in relation to his or her work in the House.”

Author(s) Name: Saumen Chakraborty (Magadh University, Bodh-Gaya)