Assignment on

constitutional
law II
(PARLIAMENTARY
PRIVILIGES)

Submitted to:-
Yashvardhan Krishna
Submitted by:-
Aditi sidhana
Bba.ll.b(h)
Introduction
Privilege may be defined as exceptional right and exemption. The expression “Privilege
and Immunity”, under the Constitution of India and in the arena of Parliament, donates
certain special and exceptional rights of Lok Sabha and Rajya Sabha or its individual
members who are generally accepted as necessity for the implementation of
constitutional functions

Who Enjoys Parliamentary Privileges?

The privileges only given to the members of the Parliament, and also conferred on the
person who actively participate in any of the committee and in the function of the
parliament, just like it incorporates on Attorney General and union ministers but in case
of
President, even though he is a part of Parliament, does not entrusted with
parliamentary privileges.
Sir Thomas Erskine define the expression “Parliamentary Privilege” as the total sum of
the specific rights enjoyed by each House of Parliament collectively is a constituent part
of Parliament, and by the members of every house of Parliament one by one, without
which they could not proceed with their functions, and which exceed those possessed
by different bodies and people.

Article 105
Privileges, power, right etc for the two houses of Parliament individually and of the
members and committees thereof-

1. Comes under the concern in the provisions of the constitution and the rules,
regulations and standing circulations which mandates procedure and conduct of
Parliament, and it shall be necessary that freedom of speech in every house of
parliament provided without any checks and balances.
2. No member of the Parliament should be made liable for any proceeding initiated
against him in the court in respect of anything said, vote which was given by him
or any committee thereof, and no person should be made liable in context to the
publication by him or under any authority empowered by either house of
Parliament of any report, vote, proceeding or paper.
3. the privileges immunity and power of each of the two houses of Parliament and
of its members and committees thereof, shall be such as may define time to time
and provided by the Parliament itself and through established procedure by law,
and, until so defined shall be a matter of concern for those of that house and of
members of that house and for its committees immediately before the date of
initiation of section 15 of the constitution
4. above mentioned constitutional provisions of clauses (1),(2) and (3) shall apply in
relation to the person who by virtuness has the right to freedom of speech, and
otherwise to take part in proceedings of the Parliament of any of its committee
thereof, the clauses will apply in relation to the Parliament.
 Article 194
1. This subject comes under the provisions of the constitution and rules, regulations
and standing orders which regulates the procedure of the State Legislature, and
there shall be freedom of speech for the member of legislature in every state.
2. No member of the state legislature shall be compelled for any proceeding
initiated against him in any court of law in regards to anything utter or any vote
given by him or her in the state legislature and any of its committee thereof, and
no person shall be made liable to prosecute in the context of the publication by
him or under any authority of a house of state legislature of any paper, vote,
report, or proceedings.

3 the privileges and immunities of the house of the state legislature, and of its members
and the committees of the house os state legislature shall be such as may be defined
by the state legislature from time to time though established procedure of law, and, until
so define, shall be the subject matter to those of that house and of its member and its
committee thereof, immediately before the section of 26 of the constitution
4 constitutional provisions of clauses 1,2 and 3 shall apply in relation to the person who
by virtuness of this constitution has the right to freedom of speech, and the other way
around to take part in the proceedings of the house of the state legislature and any of its
committee thereof as they pertain in relation to members of the state legislature.

Types of parliamentary priviliges:-

Collectively enjoyed by the member of Parliament

 No person whether a member or a stranger can be arrested and no legal

proceedings can be initiated against him either criminal or civil, within the
premises of the house of the Parliament and without the approval of the
proceedings officer of that particular house.

 No court shall have the right to investigate the proceedings of any house of the
parliament and any of its committees.

 Parliament shall have the power to exclude guests or visitors from the meeting of
the house or also have the power to conduct a secret meeting if the matters of
national importance or any matter of public importance.
  Parliament shall have the right to penalize its member or an outsider for
committing the breech of its privileges. And for contempt by reprimand,
admonition or imprisonment and also have the right to expel and suspend in case
of a member.

 When a parliament is in session, a member of Parliament or a person on whom

this right and immunities conferred may refuse to appear in court of law or to
present any evidence in court.

 Members of the Parliament cannot be arrested when the sitting of the Parliament
in session and 40 days before the commencement and 40days after the end of
the session.
 No member shall be made liable to any proceeding in any court for whatever he
or she said or any vote given by him or her during the session in the Parliament
or its committees.

Freedom of speech
The spirit of the parliamentary form of democracy is frank free, and valiant discussions
in the house of the parliament. For the authority like parliament freedom of speech plays
a very indispensable role that provides opportunities to the members of the houses to
express their feelings without any sort of fear, hesitation, being penalized for offences
such as defamation, innuendo, etc..
Article 105, clause (1), expressly protect the right to freedom of speech in Parliament. It
provides that there shall be complete freedom of speech in Parliament. Clause (2),
further states that no member of each house of the Parliament shall be made liable for
any proceedings in any court of law in regards to anything said or any vote given by him
or her in parliament or any committee of parliament.
No action is initiated against the member, for the offence of defamation or in the context
of words said in Parliament or its committees, neither civil nor criminal. No imprisonment
is there for the mere spoken words by the immunity, it extends to votes, as clause (2)
specifically provides that any vote given by him/her in parliament or committee thereof.
Though it can concluded that, the freedom of speech shall extend to other conducts
which is done and having a nexus with proceedings of each house, such as, for notice
of questions, motions, reports of committee and the resolutions.
It is important to consider that clause (1) of article 105 comes under the subject to the
provisions of the constitution and to the standing orders and rules for the regulation and
procedures of the Parliament. The word regulation for the procedure of Parliament
comes in clause (1) should be read in that manner so that it apply to provisions of both
i.e constitution and the rules and standing orders and circulations.
The freedom of speech described under article 105 (1) having a peculiar interest and
different from that right which a citizen enjoy as a fundamental right provided under
article 19 (1) (a). The fundamental right, freedom of speech, does have the power to
protect an individual completely for what he says. The right is come under clause (2)
which is subject to reasonable restrictions of article 19 of the constitution. The term
freedom of speech which used for article 105(1) provides that no member of Parliament
shall be made liable to any proceedings initiated against him, whether civil or criminal, in
any court of law and for the statement made in house while debating in either house of
Parliament or any committee thereof.
Article 105 (2) confers privileges, in respect of anything said on the floor of the
Parliament. The word “anything” is considered as widest concept and it is parallel to as
a whole. The only restriction arises from the word in the Parliament, which means
during the session of Parliament and in the course in the transaction of the Parliament.
Once it was proved that Parliament was in session and it business was carried out,
anything uttered during the course of that business was completely immune from
proceedings initiated against the member in any court. This immunity is not absolute but
works in respect to the Parliament.
It is one of the alluring features of the parliamentary form of government that the
people’s chosen representative should be free to express themselves and their views
without any fear of intimidation or any legal consequences. What they said comes only
under the purview of the discipline and regulation of the Parliament, the good conduct of
the members and the control of the proceedings by the presiding officer. The court has
no right to say and interfere in the matter of the Parliament and should really have none.

Some limitations are also there which should be

followed in relation to claim privileges
 Freedom of speech should be according to the constitutional provisions and
subject to the procedures and rules of the parliament, provided under article 118
of the Indian constitution.

 Article 121 of the Indian constitution confers that, the member of the parliament
are not allowed to discuss the manner and the judgement given by the judges of
the supreme court and the high court. But, even if this occurs, it is an internal
matter of the parliament and the court has no right to interfere in it.

 No immunity and right could be claimed and held back by the members for
anything which is said outside the proceedings and premises of the parliament.
 Conclusion
It has been shown that there is an unmistakable division about what all
rights and benefits are supreme and what isn’t. In India Legislative
Assemblies and Parliament never release any legal capacity and their
verifiable and protected foundation does not bolster their case to be viewed
as courts of record in any sense. No insusceptibility from an investigation by
courts of general warrants issued by House in India can, in this way, be
asserted.

Both the Parliament and State Legislatures have an obligation to look

cautiously under the steady gaze of making any law so it doesn’t hurt
different rights. It is likewise an obligation of the individuals to appropriately
utilize these benefits and not abuse them for substitute purposes that are
not in the support of general enthusiasm of the country and open on the
loose.

The Court has developed the correct convention to decide the benefits of the
parliament that the Indian Parliament can receive. The Doctrine of Pen, Ink
and Indian elastic hypothesis.

As to obtaining models and instances of benefits from the Constitution of

different nations, the Supreme Court in case M.P.V. Sundaramier and Co. v.
Territory of Andhra Pradesh[12]. advised: “The strings of our Constitution
were no uncertainty taken from other Federal Constitution yet when they
were woven into the texture of our Constitution their compass and their
composition experienced changes. In this manner, significant as the
American choices are as indicating how the inquiry is managed in the
Federal Constitution extraordinary consideration ought to be taken in
applying them in the understanding of our Indian Constitution.”

The National Commission to Review the Working of the Constitution (NCRWC)

has additionally prescribed in the report, that “The benefits of lawmaking
bodies ought to be characterized and delimited for the free and autonomous
working of Parliament and State Legislatures.”

It might in this way be expressed that the codification of benefits would

reinforce the standard of law. Along these lines, it may be effectively
reasoned so as to decide the benefits, the house can’t aimlessly embrace a
similar that exists in Britain however needs to choose and examine whether
it suits the Indian Democracy and does not outrage the Republic for the
country.