Overview

Parliamentary privileges are special rights, immunities, and exemptions enjoyed by Parliament as a whole, its committees, and its individual members. They are essential for the independent functioning of the legislature and to protect it from executive interference. The constitutional basis is Article 105 (Parliament) and Article 194 (State Legislatures).

Constitutional Provisions

Article Provision
Article 105(1) Subject to the Constitution and Standing Orders, there shall be freedom of speech in Parliament
Article 105(2) No Member shall be liable to any proceedings in any court in respect of anything said or any vote given in Parliament
Article 105(3) Powers, privileges, and immunities of each House shall be such as may be defined by Parliament by law; until defined, they shall be those of the House of Commons of the UK at the time of commencement of the Constitution
Article 105(4) Persons entitled to speak in Parliament and other persons whose presence is required shall have the same privileges
Article 194 Identical provisions apply to State Legislatures

The 44th Amendment (1978) replaced the reference to "House of Commons of the United Kingdom" in Articles 105(3) and 194(3) with the phrase "as they were immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978." Parliament has not yet codified these privileges by legislation.

Categories of Parliamentary Privileges

Collective Privileges (of the House)

Privilege Description
Right to publish debates Each House has the exclusive right to publish (or prohibit publication of) its proceedings
Right to exclude strangers Either House can order removal of non-members from the chamber or gallery
Right to regulate internal proceedings Courts cannot inquire into the regularity of internal proceedings of Parliament
Right to punish members and outsiders For breach of privilege or contempt of the House
Right to receive immediate information on arrest If a member is arrested, the arresting authority must immediately inform the Speaker/Chairman

Individual Privileges (of Members)

Privilege Description
Freedom of speech Absolute immunity for anything said or any vote cast in Parliament; cannot be questioned in any court
Freedom from arrest Civil arrest cannot be made 40 days before, during, and 40 days after the session of Parliament; does not extend to criminal cases
Exemption from jury service Members cannot be compelled to serve as jurors during a session
Freedom from appearing as witness Members cannot be required to appear as a witness in court during a session

Breach of Privilege vs Contempt of House

These are related but distinct concepts:

Breach of Privilege — Any act or omission that infringes a specific privilege of Parliament or its members (e.g., misreporting Parliamentary proceedings in a manner that reflects adversely on the House).

Contempt of House — Any act, words, or publication that obstructs, insults, or impedes the House or its members in the discharge of their functions. Contempt is broader — an act may be contempt without technically constituting a breach of any specific privilege.

Any member may raise a privilege motion; if the Speaker/Chairman admits it, the matter is referred to the Committee of Privileges for investigation.

Keshav Singh Case (1965)

This is the most important judgment on parliamentary privileges vis-à-vis fundamental rights.

Background: Keshav Singh, a non-member from Gorakhpur (Uttar Pradesh), distributed a pamphlet against a Congress MLA accusing him of corruption. The UP Legislative Assembly found him guilty of contempt and sentenced him to imprisonment. When Singh's lawyer (B.R. Mehta) moved the Allahabad High Court for a habeas corpus petition, the Assembly passed a resolution holding the two judges who granted bail and Singh's lawyer also in contempt.

Supreme Court Ruling (1965): A Special Bench of 7 judges of the Supreme Court held:

  • Courts can review whether the exercise of legislative privilege violates Fundamental Rights
  • The privilege of a House does not extend to punishing persons not before it for acts unconnected with pending proceedings
  • The two judges who granted bail had not committed contempt; the Assembly could not arrest them
  • Legislative privileges are subject to constitutional mandates including Part III (Fundamental Rights)

Significance: The case established that legislative privilege is not absolute and judicial review is available where fundamental rights are violated by the exercise of such privilege.

Anti-Defection & Privilege

There is a tension between Article 105(2) (immunity for votes in the House) and the Tenth Schedule (anti-defection law). The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) held that:

  • The Speaker's decision under the Tenth Schedule is open to judicial review
  • Voting against the party whip may attract disqualification — this co-exists with, but does not negate, privilege for the act of voting itself
  • The anti-defection mechanism is a constitutional exception to the general privilege protection

Parliamentary Committees on Privileges

House Committee
Lok Sabha Committee of Privileges — 15 members nominated by Speaker
Rajya Sabha Committee of Privileges — 10 members nominated by Chairman
State Legislatures Similar privilege committees constituted as per rules

Functions: Examine cases of alleged breach of privilege referred to it; investigate facts; recommend punishment (reprimand, suspension, imprisonment).

Key Points for UPSC

  • Freedom from arrest applies only to civil arrest — not criminal proceedings, preventive detention, or arrest under tax/revenue statutes
  • Articles 105 and 194 are not symmetrical with Article 19(1)(a) — privilege of speech in Parliament is absolute; free speech outside is subject to reasonable restrictions
  • Parliament has not yet codified parliamentary privileges by legislation; UK Parliament has had codified privileges since the Bill of Rights 1689
  • The 44th Amendment (1978) updated the reference but retained the essential content
  • Keshav Singh (1965) — legislative privilege subordinate to fundamental rights; courts can issue writs even in privilege matters where fundamental rights are involved