Article 105 of the Indian Constitution is a cornerstone provision that defines and protects the special rights and immunities enjoyed by the Members of Parliament (MPs) and the Houses of Parliament themselves. These privileges are essential for the effective and independent functioning of the legislative body, ensuring that lawmakers can perform their duties without fear of external interference or legal repercussions for their parliamentary actions.
The article grants specific powers and privileges to the Houses, their committees, and their members, ranging from freedom of speech within the parliamentary precincts to immunity from civil and certain criminal proceedings. While crucial for legislative efficacy, the scope and exercise of these privileges have been subjects of debate and judicial interpretation over the years, particularly concerning their relationship with fundamental rights.
Original Text
105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing 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.
(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 commencement of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House or any committee thereof as they apply in relation to members of Parliament.
Detailed Explanation
Article 105 is divided into four clauses, each addressing a specific aspect of parliamentary powers, privileges, and immunities.
Clause (1) guarantees “freedom of speech in Parliament”. This freedom is not absolute but is “Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament”. This means that while MPs have the liberty to speak on any matter during parliamentary proceedings, they must adhere to the procedural rules established by Parliament itself and other constitutional provisions (like not discussing the conduct of a judge in discharge of his duties, except upon a motion for his removal as per Article 121). This ensures robust debate while maintaining decorum and order.
Clause (2) provides a crucial immunity. It states that no MP is liable to any court proceedings for “anything said or any vote given” in Parliament or its committees. This absolute immunity protects MPs from legal action, such as defamation suits, for statements made within the confines of Parliament. The clause also extends immunity to any person publishing reports, papers, votes, or proceedings by or under the authority of either House. This ensures that official parliamentary records and publications cannot be challenged in court. The phrase “anything said or any vote given” has been interpreted broadly by courts to cover not just oral statements or casting a vote, but also other parliamentary actions integral to their legislative function.
Clause (3) deals with the other powers, privileges, and immunities that are not specifically covered by clauses (1) and (2). This clause has a legislative history. Originally, it stated that these privileges would be those of the House of Commons of the Parliament of the United Kingdom as they existed at the commencement of the Indian Constitution. The Constitution (Forty-fourth Amendment) Act, 1978, changed this provision. The amended clause states that these privileges “shall be such as may from time to time be defined by Parliament by law”. This indicates the intention for the Indian Parliament to eventually codify its own privileges through legislation. However, Parliament has not yet enacted such a comprehensive law. Therefore, the latter part of the amended clause is operational: “until so defined, [the privileges] shall be those of that House [House of Commons] and of its members and committees immediately before the commencement of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.” This means that while the reference point is still the UK House of Commons privileges, it is specifically those existing just before the 44th Amendment came into force in 1978, not those of the UK House of Commons from time to time after that date. These ‘other privileges’ include matters like the right to regulate internal affairs, the right to exclude strangers, the right to publish debates, and the power to punish for breach of privilege or contempt of the House.
Clause (4) extends the application of the privileges and immunities mentioned in clauses (1), (2), and (3) to certain individuals who are not elected members but have the right to participate in parliamentary proceedings. This primarily includes the Attorney-General of India, who has the right to speak in and take part in the proceedings of either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but without a right to vote (as per Article 88).
The overall purpose of Article 105 is to safeguard the independence, authority, and effectiveness of Parliament. These privileges are not meant to elevate MPs above ordinary citizens but are considered necessary functional prerequisites for the legislative body to discharge its duties without coercion or obstruction. The power to punish for breach of privilege or contempt of the House is an inherent power derived from Clause (3) (as it existed or as it stands referring to the UK House of Commons privileges).
Detailed Notes
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Clause (1): Freedom of Speech
- Guarantees freedom of speech within Parliament.
- Subject to:
- Provisions of the Constitution (e.g., Article 121 regarding discussion of judges’ conduct).
- Rules and Standing Orders regulating Parliament’s procedure.
- Ensures open debate on national issues.
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Clause (2): Immunity from Court Proceedings
- Absolute immunity for MPs for “anything said” or “any vote given” in Parliament or its committees.
- Protects MPs from legal action (e.g., defamation) in courts for their parliamentary actions.
- Extends immunity to persons publishing parliamentary reports, papers, votes, or proceedings by or under the authority of either House.
- Safeguards official parliamentary publications from court challenge.
- “Anything said or any vote given” is interpreted broadly to cover actions closely related to parliamentary function.
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Clause (3): Other Powers, Privileges, and Immunities
- Covers privileges not explicitly mentioned in (1) and (2).
- Legislative evolution:
- Originally referred to UK House of Commons privileges at the commencement of the Constitution.
- Amended by 44th Amendment Act, 1978:
- Primary: Shall be defined by Parliament by law.
- Until defined: Shall be those of the UK House of Commons immediately before the commencement of Section 15 of the 44th Amendment Act, 1978.
- Parliament has not yet codified these privileges by law.
- Therefore, the reference point remains UK House of Commons privileges as they existed in 1978.
- Includes privileges like:
- Right to regulate internal proceedings.
- Right to exclude strangers.
- Right to publish debates and proceedings.
- Power to punish for breach of privilege or contempt of the House.
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Clause (4): Application to Other Persons
- Extends the provisions of Clauses (1), (2), and (3) to persons who have the right to speak and take part in parliamentary proceedings by virtue of the Constitution.
- Primarily applicable to the Attorney-General of India (as per Article 88).
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Purpose:
- Ensure the independence, authority, and effectiveness of Parliament.
- Enable members to discharge their duties without fear or obstruction.
- Maintain the dignity and smooth functioning of the legislative process.
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Source (Until Codified): UK House of Commons privileges as of 1978 (for Clause 3).
Additional Comments
- Parliamentary privileges are not exhaustive and can evolve, but in India, their current scope (especially for Clause 3) is linked to the UK House of Commons practices as of 1978 due to the lack of a comprehensive codifying law by the Indian Parliament.
- The relationship between parliamentary privileges (derived from Article 105) and fundamental rights (Part III) has been a subject of judicial scrutiny. The Supreme Court has held in various cases (like Kesho Singh’s Case - 1965) that while privileges are essential, they are not absolute and are subject to fundamental rights to some extent, although the exact balance remains complex.
- Breach of privilege occurs when an individual or authority disregards or attacks any of the privileges, rights, or immunities of the Houses or its members. Contempt of the House is a broader term referring to any act that obstructs or impedes a House or its members in the performance of their functions, or which has a tendency, directly or indirectly, to produce such results.
- Parliament has the power to inquire into breaches of privilege and contempt and punish those found guilty, including summoning individuals, issuing warnings, or even imprisonment (though the latter is rare and for a limited term).
- The absence of codified law for all privileges under Clause (3) leads to ambiguity and potential for arbitrary exercise of powers, relying on precedents and interpretations of potentially outdated UK practices. There is a long-standing debate on the need for Parliament to enact a specific law to define these privileges clearly.
Summary
Article 105 of the Indian Constitution grants powers, privileges, and immunities to the Houses of Parliament, their members, and committees, essential for their effective functioning. It guarantees freedom of speech within Parliament, subject to constitutional provisions and parliamentary rules, and provides immunity to members from court proceedings for anything said or any vote given in Parliament. For other privileges, the article states they shall be defined by law made by Parliament; until such a law is enacted, they are the same as those of the UK House of Commons immediately before the 44th Constitutional Amendment in 1978. These privileges also extend to non-members like the Attorney-General who participate in parliamentary proceedings. The core purpose is to protect Parliament’s independence and allow members to perform their legislative duties without fear of external interference.