What are the Privileges of the Legislature?

Supreet Kaur

Legislature is the law-making organ of the government. At central level, Parliament makes the law and at State level, State Legislative Assemblies make the law. To perform their functions properly, it is essential that they enjoy certain degree of independence and freedom.

So, our Constitution itself has provided the members of legislature with some privileges and immunities while they are performing the legislative function. These are known as Parliamentary Privileges.

According to Sir Thomas May, “Parliamentary Privileges are the sum of peculiar rights enjoyed by each House collectively and by members individually, without which they couldn’t discharge their functions.”

Parliamentary privileges are thus the rights and power which are exclusively available to the members of Parliament. These Privileges are also embodied in our Constitution under Article 105 and Article 194 of the Constitution. The provisions of both Articles are exactly same.

The following freedoms are available to members of Parliament and members of State Legislatures:

Freedom of Speech: Article 105(1) and Article 194(1)

Article 105(1) and 194(1): “Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.”

According to Clause (1) of Article 105, members of the Parliament have the freedom of speech. Moreover, they cannot be held liable for anything said or done (vote) in the Parliament as per as Clause (2). It means the members can express their views either in favour of an issue or against it without any restrictions.

Freedom of speech is very essential since the members are representative of the people. This privilege makes them Speak fearlessly. Freedom of Speech and Expression is also our fundamental right, but that freedom is subjected to restrictions, but the freedom of Speech given to the members of the House is absolute and cannot be restricted by Article 19(2).^[1]

This absolute freedom is available to him only when he is speaking in the Parliament or State Assembly. This freedom can only be restricted by any other Constitutional provision or the rules made by the House.

For Example, Article 121 and Article 211 immune the conduct of a Supreme Court or High Court judge in the Parliament or in State Legislatures. Moreover, even if the he violates this provision, he cannot be tried before any court. He would be subject to the discipline of the House itself.

Freedom of Publication of Proceedings: Article 105(2) and 194(2)

Article 105(2): “No member of Parliament shall be liable to any proceedings 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 proceedings”.

Saying anything or voting is a form of expressing one’s views. It is sufficiently covered under Freedom of speech.

Publication of proceedings includes publication by newspapers, magazine, TV, wireless telegraphy etc.

According to this Article, the members of the Houses cannot be made liable if they publish any proceedings of the House under the Authority of the House. Since the general public has the right to know that what happened in a parliamentary-proceedings, so publication of Parliamentary proceedings is immuned under this Article.

The Parliament has also enacted the Parliamentary Proceedings Act, 1956 for this purpose, which provides that no civil or criminal action can be taken against any member in respect of publication of proceedings of the House if proceedings were done without malice.

This Act was replaced during Emergency in 1975. But the provisions of the Act were again incorporated in the Constitution under Article 361-A by 44^th Amendment Act, 1978.

This immunity is available only to members of the Houses not to any private person who published the proceedings without the authority of the House. ^[2]

This freedom is subjected to the rules made by house, so publication of a secret sitting of the House is not protected under this Article.

Other Privileges: Article 105(3) and 194(3)

Article 105(3): “In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and 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 of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978.”

This is the amended Article as provided by 44^th Amendment. Earlier 42^nd Amendment provided that no legislation is required to lay down the privileges.

The other Privileges as per the rules made by house are:

• Freedom from Arrest: Any member of the House cannot be arrested in a civil proceeding within 40 days before and after the session of the House. If he is arrested, he must be released to let him attend the Session. But a member can be arrested in a criminal proceeding, but the detaining authority must notify the House the reason, time, place of his detention.
• Right to exclude strangers: When a secret sitting is going on the presiding officer of the house to order the strangers to withdraw from the chamber, lobby. (Rule 248 Lok Sabha)
• Right to Prohibit the Publication of proceedings: The presiding officer of the house may declare that a certain part of the proceedings is not to be published. Any person doing so may be punished under the Contempt of house as per as the rules made by the house.
• Right to regulate internal proceedings: The Houses have the power to make rules to regulate their proceedings. No one can interfere in that even the judiciary. Article 122 and 212 provides that the validity of proceedings cannot be called in question on ground of any irregularity. The presiding officers are given the power to summon, adjourn the proceedings by the Constitution itself.
• Right to punish for contempt of the House: If any person either the member or a non member break any rule of the house, he may be punished according. For example, a member may be expelled from the House.

Privileges and Fundamental Rights – Which will have supremacy ?

In Gunpathi K. Reddi v. Nafisul Hasan^[3], one member was arrested for contempt of the House. He was kept in a hotel after arrest. He filed a writ petition before S.C. on the ground that he was not produced before the magistrate within 24 hours of his arrest. Supreme Court ordered his released and held that Article 105 and 194 are subject to Fundamental rights contained in Part III of the Constitution.

But in M.S.M Sharma v. S.K. Sinha^[4] , the Supreme Court held that in case of conflict between Fundamental Rights under 19(1) (a) and Article 105 (Article 194), the latter would have primacy.

But this is not a strict rule and applicable in all cases that Privileges would prevail over the fundamental rights. The decision in M.S.M case is only for Article 19(1)(a).

Should Privileges be codified?

Although Article 105(3) provides that the Parliament may make a law to define the privileges, but no such law is still there. The privileges are as they are made by the rules by the Houses. So, the position is uncertain as they are not codified. Codified privileges can be checked by the judiciary that whether they are constitutional or not. The National Commission to review the Working of the Constitution in their report in 2002 recommended that the Privileges should be codified so that the privileges may be defined and delimited.

Conclusion

So, it can be inferred that the Constitution has itself given the Privileges to the legislature so that it can function effectively. The Privileges can be extended by the legislature itself by virtue of Article 105(3) and Article 194(3).

However, the privileges are not available in criminal matters. The privileges must not be arbitrary and there is a need that the privileges are codified so that they become certain.

Moreover, privileges must not infringe the fundamental rights. The Privileges must be to such extent only that the freedom of its members to perform legislative function is ensured not beyond that.

1. P.V. Narasimha Rao v. State AIR 1998 SC 2120 ↑
2. Re Under Article 143, AIR 1965 SC 745 ↑
3. AIR 1954 SC 636 ↑
4. AIR 1959 SC 395 ↑