Privileges of Parliament and Its Members (Article 105)

At a Glance

• What it is Special rights and immunities of the Houses, committees and members
• Article Article 105 (Parliament); Article 194 for state legislatures
• Kinds Collective and individual
• Not extended to The President
• Exam link UPSC Prelims, Polity: Parliament

Where Does It Fit?

This is the thirteenth topic of the category on Parliament. Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses, their committees and their members. They are necessary to secure the independence and effectiveness of their actions.

Coverage

The privileges also apply to the standing committees, whose reports are protected, and to state legislatures under Article 194. Without privileges, the Houses can neither maintain their authority, dignity and honour nor protect members from obstruction in the discharge of their responsibilities. The Constitution extends privileges to persons entitled to speak and take part in the proceedings of a House or its committees, such as the Attorney General of India and Union ministers. The privileges do not extend to the President, who is an integral part of Parliament.

Collective Privileges

1. The right to publish reports, debates and proceedings and to prohibit others from publishing them. The 44th Amendment restored the freedom of the press to publish true reports without prior permission, except in a secret sitting.
2. The right to exclude strangers and hold secret sittings.
3. The right to make rules to regulate procedure and conduct of business and to adjudicate on such matters.
4. The right to punish members and outsiders for breach of privilege or contempt, by reprimand, admonition or imprisonment, and suspension or expulsion for members.
5. The right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
6. The right to institute inquiries, order the attendance of witnesses and send for papers.
7. Courts are prohibited from inquiring into the proceedings of a House or its committees.
8. No person can be arrested and no legal process served within the precincts of the House without the presiding officer’s permission.

Individual Privileges

1. Freedom from arrest during the session and 40 days before the beginning and 40 days after the end of a session. This is available only in civil cases and not in criminal cases or preventive detention.
2. Freedom of speech in Parliament: no member is liable to any proceedings in any court for anything said or any vote given in Parliament or its committees. This is subject to the Constitution and the rules regulating procedure.
3. Exemption from jury service, and the right to refuse to give evidence or appear as a witness in a pending case while Parliament is in session.

Breach of Privilege and Contempt

When any individual or authority disregards or attacks the privileges, rights and immunities of a member or the House, the offence is breach of privilege and is punishable by the House. Any act or omission which obstructs a House, its member or officer in the performance of functions, or tends to produce results against the dignity, authority and honour of the House, is contempt of the House. Contempt is not always a breach of privilege, while a breach of privilege is always contempt; for example, disobedience of a legitimate order of the House is not a breach of privilege but can be punished as contempt.

Sources of Privileges

Article 105 originally expressly mentioned two privileges, freedom of speech in Parliament and right of publication of proceedings, and for the others referred to the British House of Commons as on 26 January 1950, until defined by Parliament. The 44th Amendment dropped the direct reference to the House of Commons, only a verbal change, so the position remains the same. Parliament has not made a special law to codify all privileges. They are based on five sources: constitutional provisions, laws made by Parliament, rules of both Houses, parliamentary conventions and judicial interpretations.

The Indian Parliament is not sovereign in the British sense, because it is limited by the written Constitution, federal system, judicial review and Fundamental Rights, whereas in Britain Parliament can make any law, and constitutional laws by the ordinary procedure, and its laws cannot be invalidated by courts.

Why Is This Topic Important?

• Direct questions 40 days, strangers and freedom of speech are asked
• Privilege versus contempt Classic distinction
• Sovereignty link Comparison with Britain

What Came Next?

The next topic covers the disqualification of members of Parliament.

Key People and Terms

• Privilege Special right of a House or member
• Contempt Offence against the dignity of the House
• Admonition Formal warning
• Precincts The premises of the House
• Sovereignty of Parliament British doctrine

Exam Corner

Mains Angle

Questions on this topic usually ask about codification and conflicts with rights. Use these points to add depth.

• Purpose Independence of the legislature
• Uncodified Five sources
• Court bar Proceedings immune from inquiry
• Balance with rights Press freedom restored by the 44th Amendment