Article 105 & 194: Parliamentary & State

Legislative Privileges under Indian Constitution

By Subodh Asthana ­ January 16, 2020

This article is written by Kashish Kundlani, a third­year student of (BBA. LL.B) Ramaiah
Institute of Legal Studies, Bangalore. In this article, parliamentary privileges given to the
members of parliament and to the members of the legislature of a state under Article 105
and Article 194 of the Constitution have been discussed.

Table of Contents

1. Introduction
2. Privileges mentioned in the constitution
2.1. Freedom of speech and publication under parliamentary authority
2.1.1. Case Law
2.1.1.1. Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613
2.1.1.2. P.V. NARSIMHA RAO v. STATE (1998)
2.2. Power to make rules
2.3. Internal independence/autonomy
2.4. Freedom from being arrested
2.5. Right to exclude strangers from its proceedings and hold secret sessions
 2.6. Right to prohibit the publication of its reporters and proceedings
2.7. Right to regulate internal proceedings
2.8. Right to punish members or outsiders for contempt
2.9. Privileges and fundamental rights
2.9.1. Case Law
2.9.1.1. Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952
2.9.1.2. MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395
2.10. Privileges and the law courts
2.10.1. Case Law
2.10.1.1. In Keshava Singh v. Speaker, Legislative Assembly

3. Conclusion
4. References

Introduction
Article 105 and Article 194 grant privileges or advantages to the members of the
parliament so that they can perform their duties or can function properly without any
hindrances. Such privileges are granted as they are needed for democratic functioning.

These powers, privileges and immunities should be defined by the law from time­to­time.
These privileges are considered as special provisions and have an overriding effect in
conflict.

Privileges mentioned in the constitution

Freedom of speech and publication under parliamentary

authority
This is defined under Article 105(1) and clause (2). It gives the members of parliament
freedom of speech under clause (1) and provides under Article 105(2) that no member of
parliament will be liable in any proceedings before any Court for anything said or any vote
given by him in the Parliament or any committee thereof. Also, no person will be held liable
for any publication of any report, paper, votes or proceedings if the publication is made by
the parliament or any authority under it.

The same provisions are stated under Article 194, in that members of the legislature of a
state is referred instead of members of parliament.

Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom
of speech. Article 105 applies to the members of parliament not subjected to any
reasonable restriction. Article19(1)(a) applies to citizens but are subject to reasonable
restrictions.

Article 105 is an absolute privilege given to the members of the parliament but this
privilege can be used in the premises of the parliament and not outside the parliament.

If any statement or anything is published outside the parliament by any member and if
that is reasonably restricted under freedom of speech then that published article or
statement will be considered as defamatory.
 Click Here

Case Law

Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC
613

The appellant is an elected member of the West Bengal Legislative Assembly. The appellant
had an intention to ask certain questions in the assembly and therefore he gave the notice
for the same. The questions to be asked in the assembly were refused in compliance with
the rules of procedure for the conduct of the business in the assembly. But the appellant
published those questions he was not allowed to ask in the assembly in a local newspaper
called JANAMAT.

The first respondent, who was then functioning as a Sub­Divisional Magistrate and because
of whose conduct the matter of questions arose, filed a complaint against the appellant
and two others, the editor and the printer and publisher of those questions.

The petition contained the fact that the appellant had made slanderous accusations
against him with an intention to be read by the members of the public. These accusations
were false and the appellant published them, having an intention of harming the
reputation of the complainant. He also alleged that publishing such false questions in the
journal first requires prior permission by the government in instituting the legal proceeding
against the public servant.

In this case, it was held that the provisions of Article 194 even though disallowed by the
speaker were a part of the proceedings of the house and publication for the same will not
attract any sections of the Indian Penal Code.
He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but
also give the right to ask questions and publish them in the press.

P.V. NARSIMHA RAO v. STATE (1998)

The facts of the case are – some of the MP’s received bribes to vote against the motion of
no­confidence against the Prime Minister P.V. Narsimha Rao. He was charged under IPC
and Prevention of Corruption Act on the grounds that he bribed some MPs to vote against
the no­confidence motion when he was serving as the Prime Minister. In this case, the
question arose that under Article 105(2) does any member of parliament have any
immunity to protect himself in criminal proceedings against him?

It was held by the majority of the Court that under Article 105(2) the members of the
parliament will get immunity and thus, the activity of taking bribe by the MP’s will get
immunity despite anything said by them or any vote given by them in the Parliament. The
Court further explained that the word “anything” here will be interpreted as a wider term.
The Court interpreted the term “anything” in a wider sense and did not prosecute P.V.
Narsimha Rao.

Power to make rules

The Parliament has the power, which is given by the Constitution of India, to make its own
rules but this power is subjected to the provisions of the Constitution. Though it can make
its own rules, the rules should not be made for its own benefit. If they make any rule
which infringes any provision of the Constitution then it would be held as void.

Internal independence/autonomy
For the effective working of both the houses of parliament and their members, internal
independence should exist without the interference of any outside party or person. The
houses can deal with their respective issues internally without any interference of the
statutory authority.

The Indian Judiciary might not interfere with the proceedings or issues dealt in the
parliament or by the members in the course of their business. Nevertheless, it may
interfere in the proceedings if it is found to be illegal or unconstitutional.

Freedom from being arrested

Freedom from being arrested
The member of parliament cannot be arrested 40 days before and 40 days after the
session of the house. If in any case a member of Parliament is arrested within this period,
the concerned person should be released in order to attend the session freely.

Right to exclude strangers from its proceedings and hold

secret sessions
The object of including this right was to exclude any chances of daunting or threatening
any of the members. The strangers may attempt to interrupt the sessions.

Right to prohibit the publication of its reporters and

proceedings
The right has been granted to remove or delete any part of the proceedings took place in
the house.

Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right to
call for the session of the Legislative assembly. But it does not have any authority in
interrupting the proceedings by directing the speaker of the assembly.

Right to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or
maybe non­members commit contempt or breach any of the privileges given to him/her,
the houses may punish the person.

The houses have the right to punish any person for any contempt made against the
houses in the present or in the past.

Privileges and fundamental rights

Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants
freedom of speech to the citizens. It is subjected to reasonable restrictions. These
restrictions are:­

Sovereignty and integrity of India should be maintained,

Security of the states should be maintained,

Public order should not be disturbed,

 Public order should not be disturbed,

Decency and morality should be maintained,

Defamation should be avoided,

Incitement to an offence should be avoided,

Contempt of court should be avoided,

Friendly relations with foreign states should be maintained.

Where on the other hand the members of parliament have been granted powers, privileges
etc. their powers or privileges are absolute unlike fundamental rights for the citizens.

The Parliament enjoys mostly all the supreme powers while making laws and exercise its
power to the best possible extent because of the absolute nature of its powers and
privileges.

The powers of the legislators are too wide such as they decide their own privileges, include
points which can breach the laid down privileges, and also decide the punishment for that
breach.

Article 105(3) and Article 194(3) states that the parliament should from time to time
define the laws or pass the laws on the powers, privileges and immunities of the members
of the parliament and members of the legislative assembly.

Case Law

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952

The facts of the case:­ The U.P. Legislative Assembly issued a warrant against the Home
Minister who was arrested from his residence in Bombay on the ground of contempt of the
house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground
that his detention under Article 22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article
22(2). He was not presented before the magistrate within 24hrs of his arrest or detention.
Not presenting him before the magistrate resulted in the violation of his fundamental right
under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot
supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:­the petitioner is the editor of the English Daily newspaper of Patna.
He published a report on the proceedings of the Bihar Legislative Assembly and the reports
were said to be removed by the speaker.

The editor was presented before the Legislative Assembly to give reasons for the breach of
privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal,
privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal,
the editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the
Court denied all the arguments based on Article 19(1)(a) as it is a general provision and
Article 194 is a special provision. If at any time both of these articles come under any
conflict the latter will prevail over the former. As the general provision cannot overrule the
effect of the special provision.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict,
the rule of Harmonious Construction (every statute should be read as a whole and
interpretations consistent of all the provisions of the statute should be adopted when in
conflict of any statute or any part of the statute) should be applied.

Privileges and the law courts

Article 143 confers the power on the President to consult the Supreme Court if at any time
it appears to the President that a question of fact or a law arises or may arise in future.
Also, such questions must be of public importance or it must be advantageous to seek the
opinion of the Supreme Court. And after such hearing, if the court thinks it relevant, it
may give its opinion to the President.

The house of parliament though have a lot of powers, privileges and immunities but
despite all these advantages it cannot act or perform similar to a Court. The Courts are the
one who interprets the laws or acts passed by the parliament. For instance, if any offence
is committed even in the house of parliament the jurisdiction vests with the ordinary
Courts.

Case Law

In Keshava Singh v. Speaker, Legislative Assembly

The facts of the case – Keshava Singh, who was a non­legislative member of the assembly,
printed and published a pamphlet. Because of the printing and publishing of the pamphlet,
the Speaker of the U.P. Legislative assembly criticized him for contempt and breach of the
privilege of one of the members. On the same day, Mr Keshava being present in the house
committed another breach by his conduct.

As a result of his conduct in the house, the speaker directed him to be imprisoned, issued a
warrant for the same and ordered his detention in jail for 7 days.

Under Article 226, a writ of Habeas Corpus was applied in his petition. The petition claimed
that the detention in jail is illegal and is done with malafide intentions. The petition also
stated that he was not given any chance to explain or defend himself. The petition was
stated that he was not given any chance to explain or defend himself. The petition was
heard by the 2 judges who gave them interim bail.

As a result of the decision in Keshava’s case, the assembly passed a new resolution.

In this resolution, it was laid that the 2 judges entertained the writ filed by the petitioner
and his lawyer. In its resolution, the assembly issued a contempt notice to present the two
judges and the lawyer before the house and explain the reasons for their conduct. It also
ordered that Keshava should be taken into custody. Under this, they moved petitions
under 226 and filed a writ of mandamus before the Allahabad High Court to set aside the
resolution passed by the assembly.

It was held by the majority of the Supreme Court that the conduct of the 2 judges does
not amount to contempt.

The Court further explained that if in the matters of privileges stated under Article 194(3)
then the house will be considered as the sole and exclusive judge provided that it should
be stated in that. But if any such privilege is not mentioned in the article then it’s the
Court who has to decide upon it.

Conclusion
After analysing Article 105 and 194, one can clearly infer their absoluteness. These special
provisions are granted to the Parliament for its effective functioning. These articles also
impose duties upon them to make effective laws which do not harm the rights of others.
The parliament or the Legislative Assembly though can exercise their powers, privileges
and immunities, cannot act as an ordinary Court of justice.

References
http://www.legalservicesindia.com/article/919/Privileges­of­Parliament.htm

http://notesforfree.com/2017/12/20/parliamentary­privileges­indian­constitution/

https://www.lawctopus.com/academike/parliamentary­privileges/

https://www.thehindu.com/opinion/op­ed/bring­the­house­up­to­
date/article19253239.ece

https://www.lawctopus.com/academike/advisory­jurisdiction­article­143/

https://ccgtlr.org/2014/02/08/parliamentary­privilege/

https://www.lawyerservices.in/Dr­Jatish­Chandra­Ghosh­Versus­Hari­Sadhan­
Mukherjee­and­Others­1961­01­16
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