INTRODUCTION

Parliamentary privileges are special rights, immunities and exemptions. Enjoyed by the two
Houses of the Parliament i.e. Lok Sabha and Rajya Sabha, their committees and their members.

The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law,
Privileges, Proceedings and Usage of Parliament: Parliamentary privilege is the sum of the peculiar
rights enjoyed by each House collectively and by Members of each House individually, without
which they could not discharge their functions, and which exceed those possessed by other bodies
or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption
from the general law.

The term privilege does not mean any special benefits or entitlements enjoyed by Members of
Parliament or state legislators but the immunity from ordinary law that, together with the potential
exercise of parliamentary powers, enables the Houses of Parliament (and state legislatures) to carry
out their primary functions of legislating, debating and inquiring more effectively, efficiently and
independently. It is made clear in the case of Raja Ram Pal v Hon’ble speaker 1 which defined the
term privilege as “A special right, advantage or benefit conferred on a particular person. It is a
particular advantage or favor granted to one person as against another to do certain acts”. Inherent
in the term is the idea of something, apart and distinct from a common right which is enjoyed by
all persons and connotes some sort of special grant by the sovereign.

The word grant by sovereign refers the privilege is conferred to them by the higher authority and
the privilege an immunity is derived from them only to such members. As inspired by the
privileges of the house of the commons. The privileges of House of Commons have been defined
as “the sum of the fundamental rights of the house and of its individual members as against the
prerogative of the crown, the authority of the ordinary court of law and the special rights of the
House of Lords”.

Why are they given?

The members of the parliament are performing responsibility of framing different laws for the
welfare of the people. They amend the constitution for betterment of the society according to the

1
(2007) 3 SCC 184.
current social structure. So, in order to secure the independence and effectiveness of their activities
the constitution has given them certain rights, immunities and privileges.

These privileges are also extended to those persons who are entitled to speak and take part in the
proceedings of a house of parliament or any of its committees; Attorney General of India and union
ministers.

Parliament consists of Lok Sabha, Rajya Sabha and President. But President can’t enjoy the
parliamentary privileges, although he is the integral part of the Parliament. It is so because, the
President is holding a dignified position, he is the first citizen of India, so he is having certain other
privileges or immunities so his nature of work is different in our Governance.

That's why the parliamentary privileges are not extendable to the President of India.

They can be classified into two types;

1. Collective privileges.
2. Individual privileges.

Collective privileges

These privileges are enjoyed collectively by each house of the parliament. Parliament has the right
to publish its reports, debates and proceedings and also has the right to prohibit others from doing
so. It can exclude strangers from its proceedings and hold the secret sittings to discuss some
important matters. (The making of the separate Telangana state was made by secret sitting.)

It can make rules to regulate its own procedures and conduct of its business and to adjudicate upon
such matters. If any members or outsiders breach the privileges or its contempt then the parliament
can punish them.

The punishment: reprimand, admonition or imprisonment- for outsiders and suspension or

expulsion in case of members. The speaker has the power to punish any member for breach of
house.

The parliament has the right to receive immediate information of the arrest, detention, conviction,
imprisonment and release of member i.e. if there is any arrest warrant against any member of the
parliament then the same has to be presented in front of the parliament before the arrest.
The courts are prohibited to enquire into the proceedings of a house or its committees. As
mentioned in the Article 122;

Courts not to inquire into proceedings of Parliament: Article 122

1) The validity of any proceedings in Parliament shall not be called in question on the ground of
any alleged irregularity of procedure.

2) No officer or Member of Parliament in whom power has been vested by or under this
constitution for regulating procedure or the conduct of business, or for maintaining order, in
Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of
those powers.

As in case when there was a separation of Telangana from Andhra Pradesh, at that time many hot
debates were going on in the parliament, and an ex MP named Lagadapati Rajagopal he used
pepper spray inside the parliament and because of that incident one member of the parliament got
heart attack and that was a very serios consequences but no court questioned it because collective
privileges enumerated in our constitution says that the courts are prohibited to enquire into the
proceedings of a house or its committees.

No person can be arrested (member or outsider) and no legal process (civil or criminal) can be
served within the precincts of the house without the permission of the presiding officer.

Individual privileges

These privileges are enjoyed by each member of the parliament individually. A member cannot be
arrested during the session of the parliament and 40 days before the beginning and 40 days after
the end of the session. But in criminal cases there is no such immunity. It is so because if there is
an honest person who wanted to do good for the welfare of the country and such thing would affect
other persons or reveal something which they don’t want to unveil, then such person can impose
false allegations on other person to prohibit him/her in doing the same. Rule 261 of Lok Sabha,
laid down that the person whosoever is arrested should communicate to either house he/she
belongs.

They have freedom of speech in parliament 105(1). No member is liable to any proceedings in any
court for anything said or any vote given by him in parliament or its committees 105(2).
Privileges and The British Constitution in Concern
Whenever it comes to privileges the biggest question which arises in front of us is why every
time when privileges are discussed, the Privileges of Britain is taken into consideration. The
answer to my question is that because it is realized that Britain enjoys the largest and the widest
privileges as compared to the whole world and hence it the British houses which are taken care
of.
Article 105 need to be taken into consideration at this point of time. When it comes to power and
privileges of the house of parliament its subclause 3 it shows that the constitution makers
themselves wanted that the privileges of the United Kingdom should be taken into consideration.
But every now and then the approach is largely criticized. It is said that there is one major
difference that exists within India and the United Kingdom and that need to be taken consideration.

Unlike the British Parliament, the Indian Parliament is not sovereign. It is the Constitution which
is supreme and sovereign and Parliament will have to act within the limitations imposed by the
Constitution. This is a mark of distinction between the British Parliament and the Indian
Parliament. British Parliament is sovereign. As the Supreme Court held in Keshav Singh case 2 that
the Indian parliament is not sovereign unlike British Parliament and are subjected to the power of
judicial review.

A legislature created by a written Constitution must act within the ambit of its power as defined
by the constitution and subject to the limitations prescribed by the Constitution Any act or action
of the Parliament contrary to the constitutional limits will be void.

Relevant Provision in Concern with Privileges in Indian Constitution

Article 105 and 194 of the constitution of India deals with the power privileges and immunities of
parliament and its members and of their state legislature and there members respectively. This
constitution of India does not exhaustively enumerate the privileges of Indian parliamentarian. As
section 3 of both these articles refers directly to the privilege of the house of commons at the
commencement of the constitution.

Hence it basically deals with all those privileges that exists in the house of commons as on 26. Jan.
1950.

2
AIR 1965 SC 745.
Summarizing Article 105 and 194 of the constitution of India it states-
105- Power, privileges, etc. of the house of parliament and of members and of committee thereof;

(1) Freedom of Speech

(2) No member shall be liable for any proceeding in respect to anything said or any
vote given by him and no one shall be liable for any publication.
(3) In other respects, the powers, privileges and immunities of each house of parliament and of the
members and the committee of each house, shall be as may from time to time defined by parliament
and until so defined shall be those of house and of its members and committee immediately before
coming into force of section 15 of constitution act 1978.
(4) The above provision shall apply to all those persons who have the right to speak in and
otherwise to take part in proceeding of house of parliament.

194- Power, privileges, etc., of the house of legislature and of the members and committees
thereof;

(1) Freedom of speech.

(2) No member shall be liable for any proceeding in respect to anything said or any vote given by
him and no one shall be liable for any publication.
(3) In other respects, the powers, privileges and immunities of each house of parliament and of the
members and the committee of each house, shall be as may from time to time defined by legislature
and until so defined shall be those of house and of its members and committee immediately before
coming into force of section 26 of constitution act 1978.
(4) The above provision shall apply to all those persons who have the right to speak in and
otherwise to take part in proceeding of that legislature.
Hence from the above 2 different Article of Indian constitution it can be inferred that the position
of state legislature is same as those of house of parliament.

Freedom of Speech:

The Freedom of speech in the Parliament under this clause is absolute and is independent of
Art.19(1) a. The stage has been set for fearless participation in the debates in the House. A member
cannot also claim immunity for any speech that he may make outside the House even if it is a
verbatim reproduction of what he has said inside the House.
The freedom of speech available to the members on the floor of the House is different from that
available to the citizens under article 19(2). A law made under this article providing for reasonable
restrictions on the freedom of speech of the citizens would not circumscribe the freedom of speech
of the members within the walls of the House.

In order to claim the immunity, what needs to be shown is only that Parliament was sitting and
that its business was being transacted.

“The Article confers immunity inter alia in respect of ‘anything said … in Parliament’. The word
‘anything’ is of the widest import and is equivalent to ‘everything’. The only limitation arises from
the words ‘in Parliament’ which means during the sitting of Parliament and in the course of the
business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved
that Parliament was sitting and its business was being transacted, anything said during the course
of that business was immune from proceedings in any court. This immunity is not only complete
but is as it should be. It is of the essence of parliamentary system of government that people’s
representatives should be free to express themselves without fear of legal circumstances. What
they say is only subject to the discipline of the rules of Parliament, the good sense of the Members
and the control of proceedings by the Speaker. The courts have no say in the matter and should
really being none”.

Members enjoy complete protection even though the words uttered by them in the House are
malicious and false to their knowledge. Courts have no jurisdiction to take action against a member
for his speech made in the House even if it amounts to contempt of the court . The privilege
Freedom of Speech can only be secured if, members do not abuse it. The freedom of speech that
is available to Members of Parliament under Article 105(1) is wider in amplitude than the right to
freedom of speech and expression guaranteed under Article 19(1)(a) since the freedom of speech
under Article 105(1) is not subject to the limitations contained in Article 19(2) 3.

Right of Publication of Proceedings- Articles 105(2),194(2) and 361-A

Clause (2) of Article 105 (as well as Article 194) expressly declares that “no person shall be liable
in respect of the publication by or under the authority of either house of Parliament of any report,
paper, votes or proceedings”.

3 M.P. Jain, Parliamentary Privileges and the press, chapter 7.

Therefore, this protection did not extend to the publication made by a private person without the
authority of the house. Common law accords the defense of qualified privilege to fair and accurate
unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere.

In Wason v. Walter4, Cockburn, C.J. observed that it was of paramount public and national
importance that parliamentary proceedings should be communicated to the public, which has the
deepest interest in knowing what passes in Parliament. But a partial report or a report of detached
part of proceedings published with intent to injure individuals will be disentitled to protection. The
same is the law in India.

The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that “no person shall
be liable to any proceedings, civil or criminal, in any court in respect of the publication of a
substantially true report of the proceedings of either House of the Parliament, unless it is proved
that the publication is made with malice.” The Act was repealed during the 1975 Emergency.

However, The Constitution (44th Amendment) Act, 1978 has put the immunity for publication on
a very sound footing. It has added Article 361-A to the constitution incorporating the provisions
of the above-said act.

Article 361-A is titled as “Protection of the publication of proceedings of Parliament and State
Legislatures.” It provides in clause (1)

“no person shall be liable to any proceedings, civil or criminal, in any court in respect of the
publication in a newspaper of a substantially true report of any proceedings of either House of
Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature,
of a State, unless the publication is proved to have been made with malice.”

However, it is provided that nothing in this clause shall apply to the publication of any report of
the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or,
as the case may be, either House of the Legislature, of a State.

The clause (2) states that “Clause (1) shall apply in relation to reports or matters broadcast, by
means of wireless telegraphy as part of any programme or service provided by means of a
broadcasting station as it applies in relation to reports or matters published in a newspaper.” It is

4 L.R. 4 Q.B. 73 (1868).

explained that in this article, “newspaper” includes a news agency report containing material for
publication in a newspaper.

In Britain, in Stockdale v. Hansard, 5 a book containing defamatory matter against the plaintiff
published under the authority of the house of the commons, was held to enjoy no privilege and
damages were awarded to the plaintiff against the publisher. As a consequence, thereof, the
Parliamentary Papers Act, 1840, was passed which made the publication of any reports, papers,
votes, or proceedings of a House of Parliament, ordered by the House, completely privileged
whether the publication was only for the use of the members of parliament, or for a wider
circulation.

On the same basis, in India, article 105 (2) no person is to be liable to any proceedings in any
court in respect of the publication of any report, paper, votes of proceedings by or under the
authority of a House of parliament. Thus, all persons connected with the publication of
proceedings of a House are protected if the same is made under the authority of the House itself.
This article does not protect publications made without the authority of the house.

To explain the true scope of Article 105 (1) and 105(2), reference may be made to the Supreme
Court case Dr Jagdish Chandra Ghosh v. Harisadhan Mukherjee 6. A member of the state
legislature gave notice of his intention to ask certain questions in the Assembly. The speaker
disallowed the questions. Nevertheless, the member published the disallowed questions in a local
Journal. A government servant filed a complaint (under section 500 and 501 I.P.C) against the
member as well as the editor, printer and publisher of the journal that the member concerned had
published false and scandalous implications against him with a view to harming his reputation.
The matter ultimately came before the Supreme Court.

The Court ruled that the said Publication did not fall within the scope of Article 194 (2)
[equivalent to Article 105(2)] as it was neither under the authority of the house nor “anything
said or vote given by a member of the assembly.” Immunity of a member of House for speeches
made by him in the House does not extend to Publication thereof by him outside the House. A
member has an absolute privilege in respect of what he says within the house but has only a
qualified privilege in his favor even in respect of what he says himself in the house if he causes

5
(1839) LJ (NS) QB 294.
6
1961 AIR 613, 1961 SCR (3) 486.
the same to be published in the public press. The court Left open the question whether
disallowed questions can be said to form part of the proceedings of a House of Legislature.

A wider privilege is however available in Britain. In the course of a debate in the house of Lords,
allegations disparaging the character of the plaintiff were spoken. A faithful report of the debate
was published in the Times. The plaintiff sued the Times for libel. In Wason v. Walter 7, the court
dismissed the action saying that the advantage to the community from publication of the
proceedings of a House "is so great, that the occasional inconvenience to individuals arising from
it must yield to the general good". Therefore, a fair and faithful report of the proceedings of a
House is not actionable in Britain. Publication of a garbled or partial report, or of detached parts
of proceedings, with intent to injure and individual, is not entitled to protection.

Article 105(2) does not confer such a protection. A newspaper not being a Publication authorized
by the legislature was not protected if it published a faithful report of a debate in a House which
contained matter disparaging to the character of an individual, or amounting to the contempt of
court.

Reference may be made in this connection to Suresh Chandra Banerji v. Punit Goala8. A member
made a speech in the W.B. Legislative Assembly. A newspaper published a report of the
proceedings of the House including the speech. The complainant filed a complaint before the
chief Presidency magistrate against the newspaper alleging that the said speech contained matter
highly defamatory to him and the newspaper by publishing the speech had defamed him.

The Calcutta High Court ruled that the member who had made the speech in the House could not
be prosecuted for uttering the words complained of. But as the reports of the said speed in the
newspaper were not published by or under the authority of the state assembly, Article 194(3)
[Article 105(3) in case of Parliament] had no application whatsoever. High Court refused to
apply Wason v. Walter principle to India. The court stated: "We have to apply the criminal law
of the land and unless reports of the proceedings in a Legislative Assembly are given a privilege
by the Indian law then we cannot possibly extend the principle of Wason v. Walter. to

7LR4 QB 73(1868).
8
Suresh Chandra Banerji v. Punit Goala, AIR 1951 Cal 176.
proceedings in this country". The offence of defamation is dealt with under sections 499 and 500
of the Indian Penal Code.

This state of law came to be regarded as a satisfactory as it was felt that many advantages would
accrue to the community if the newspapers were enabled to publish reports of Parliament in good
faith.

Accordingly, Article 361-A now enacts that no person shall be liable to any proceedings, civil or
criminal, in any court in respect of the publication in a newspaper of a substantially true report of
any proceedings of either House of Parliament or the Legislative Assembly, unless the
publication is proved to have been made with malice.

This immunity does not apply to the publication of any report of the proceedings of a secret
sitting of any House of Parliament or of the State Legislature.

A similar immunity is extended to broadcast on the air. The protection is available only to the
newspapers and air broadcasts and not to any other type of Publication like a pamphlet or
booklet. It may be noted that the immunity extends only to a 'report' of the proceedings of the
House and not to an 'article' or 'comment' on the proceedings.

CASE LAWS

MSM Sharma v. Sri Kishan Sinha

The Supreme Court in Pandit M.S.M. Sharma v. S.K.Sinha9 (hereinafter referred to as the
‘Searchlight case’). In 1954, the Editor of a newspaper Searchlight was held guilty of contempt
of the Bihar State Legislature when his newspaper carried a report of proceedings expunged by
the Speaker of the Bihar Legislature. The editor applied to the Supreme Court seeking an
injunction of the contempt proceedings, defending the publication of the report as being

M.S.M. Sharma v. S.K.Sinha , AIR 1960 SC 1186.

9
protected by the freedom of speech and expression guaranteed by Article 19(1)(a). This
argument was in furtherance of the general proposition that the guaranteed Fundamental Rights
of citizens would be applicable to the privileges and that the privileges would be subject and
subservient to them. He further contended that his right to life and personal liberty guaranteed by
Article 21 would be violated if he were produced before the Committee of Privileges of the Bihar
Legislature, which was empowered to order his imprisonment. He argued that the procedure
likely to be followed by the Committee was not ‘law’ within the meaning of Article 21. The
arguments made on behalf of MSM Sharma may be summed up thus:

1. The Article 19(1)(a) argument: The intent of the Constituent Assembly was that the privileges
should be codified eventually. Once codified, they would be ‘law’ within the meaning of Article
13(2) and therefore liable to be struck down if they violated any Fundamental Right. Since a
codified ‘law’ would be subject to Article 19(1)(a), it could not have been the intention of the
Framers that the law when still uncodified, should not be so subject. It was urged that the
uncodified law too should be made subject to the Fundamental Right of speech and expression
guaranteed by Article 19(1)(a).

2. The Article 21 argument: It was urged that the right to life and personal liberty guaranteed by
Article 21 could be deprived in the proceedings before the Committee of Privileges. It was
argued that the life or personal liberty of a citizen could only be abrogated by a procedure
established by ‘law’ and the procedure likely to be followed by the Committee was not ‘law’
within the meaning of Article 21. The counsel argued that the Court should strike down the
summons of the Committee since the exercise of that privilege could result in a violation of a
Fundamental Right. The counsel for MSM Sharma cited the G.K. Reddy case as a precedent for
this second argument. It was argued that the Court would be bound by GK Reddy case hence the
Fundamental Right guaranteed by Article 21 would have primacy over the privilege conferred by
Article 194(3). The Article 21 argument pre-supposed that privileges would be subject and
subservient to Fundamental Rights.

By a majority vote of 4:1, the Constitution Bench led by Chief Justice Das held as follows:

1. The Court held that the freedom of speech in a Legislature contained in Article 194(1), being
specific as against the general freedom of speech under Article 19(1)(a), the general restrictions
that applied to 19(1)(a) by virtue of Article 19(2)26 would not apply to specific freedom of
speech under Article 194(1).
2. As regards Clause 2 of Article 194, it was held that it was not the intention of the Framers to
make the immunity for speeches made or votes given in a legislature subject to the Fundamental
Right guaranteed by Article 19(1)(a). The Court observed that the immunity in Clause 2 of
Article 194, conspicuously lacked the phrase, ‘subject to provisions of the Constitution’ which
was a part of Article 194(1).

3. Applying the rule of Harmonious Interpretation, the Court held that the more specific
privileges in Article 194 available to Parliament would override the general rights of their
constituents contained in Article 19(1)(a) and hence that the privileges of a Legislature would not
be subject to Fundamental Rights.

4. The Court overruled the GK Reddy case on the ground that the GK Reddy case was a result
of a concession made by the counsel (the counsel had conceded that Reddy had not been
produced before a Magistrate) and hence not a ‘considered opinion’. In other words, the GK
Reddy had not expressed an opinion one way or another and was not a binding precedent.

5. The Court observed that in case if the editor was to be produced before the Committee of
Privileges in the Bihar Legislature, the rules framed by the Assembly under Article 208 would
constitute a procedure established by law, and therefore rejected the argument that Article 21
could be violated.

Therefore, on the one hand the Court negative MSM Sharma’s contention that the privileges
would be subject and subservient to Fundamental Rights, yet paradoxically it examined the
merits of the Article 21 argument, which as we have seen, presupposed that privileges would be
subject to Fundamental Rights. Having concluded that privileges are not subject to Fundamental
Rights, the Court ought to have dismissed the Article 21 argument altogether for the same reason
viz. that the privileges are not subject to the right guaranteed by Article 21. Inexplicably, the
Court not only considered the argument but while rejecting the argument, rejected it for a very
different reason –that the rules framed by the Legislature constitute ‘law’ within the meaning of
Article 21.

It must be questioned therefore: What if the Court had found that the rules framed by the
Legislature do not constitute a procedure established by ‘law’? That the right guaranteed by
Article 21 would indeed be violated if the MSM Sharma was produced before the Committee. In
such a scenario, would the court have taken its conduct to its logical conclusion? Would it have
applied Article 21 to the privileges, striking down the exercise of the privilege by virtue of which
Sharma was summoned and could possibly be imprisoned?

It is important to bear in mind that the Court made no comment whatsoever on whether Article
21 would override privileges. The Court merely held that Article 19 (1)(a) would not override
privileges. It proceeded to examine the Article 21 argument on merits without clarifying the
larger question as to whether Article 21 was to apply to privileges as a matter of rule, even
though Fundamental Rights in general and Article 19 (1)(a) in specific, were found not to apply
to and override the privileges.

This unanswered question formed the crux of the judicial interpretations on which the 1964
Presidential Reference and subsequently, the case of Raja Ram Pal turned. Both these Benches
imputed to the Court’s scrutiny of the Article 21 argument, an indication that certain Rights
would override privileges and that the privileges would be subject and subservient to these select
Fundamental Rights even if they were not so subject to the right guaranteed by Article 19(1)(a).

Keshav Singh Case10

The Uttar Pradesh Legislature found a private citizen, Keshav Singh guilty of Contempt of the
Legislature. Keshav Singh had committed a breach of privilege of MLA NN Pandey by printing
and publishing certain contemptuous pamphlets. He was summoned to the Legislature. Thereafter
he wrote a disrespectful letter to the Speaker and acted in an unruly manner when being
reprimanded in the Legislature. A warrant was issued by the Speaker for Keshav Singh’s detention
for a period of seven days. However, the warrant did not contain the facts constituting the alleged
contempt. Keshav Singh moved the High Court of Uttar Pradesh seeking issuance of the writ of
Habeas Corpus. A Division Bench ordered his release on interim bail pending decision on the
habeas corpus petition. In an unprecedented move, the Uttar Pradesh Legislature issued Contempt
notices not just to the lawyer of the accused but also to the Judges of the High Court for having
entertained the petition. The Legislature passed a resolution to the effect that all of them including

10 Keshav Singh ‘s Case, AIR 1965 SC 745.

the High Court judges were to be produced before it in custody. This marked the beginnings of a
first-rate Constitutional crisis. The following day, Mandamus petitions were filed by the judges as
well as the advocate for 193 Keshav Singh before the Uttar Pradesh High Court. A Full Bench of
the Uttar Pradesh High Court comprising 28 Judges (all except the two Judges) made directions
restraining the Speaker of the Legislature from issuing warrants and restraining the Marshal of the
House from executing the warrant if it had already been issued.

Taking note of the rapidly deteriorating situation, the President of India exercising his
discretionary power of a Reference, sought the Supreme Court’s opinion on the issues involved.

A bench of seven Judges opined upon a multitude of issues connected with the controversy. In
doing so, the interpretation of the Searchlight case became sine qua non. The Court led by Chief
Justice Gajendraghadkar placed a radically different interpretation on the law of privileges, making
them generally subject to Fundamental Rights and secured for itself the power to determine the
legality and constitutionality of legislative procedure. However, being an advisory opinion, it did
not enjoy the same force of an actually decided case.

By a vote of 6:1, the Court held that the correct interpretation of the Searchlight case would be
this: While Article 19(1)(a) would not override the privileges, Article 21 would. Further it was
held that if Article 21 applied to privileges then Article 20 would also conceivably apply. However,
the Court did not stop there. The majority further went on to state that the general proposition that
privileges would not be subservient to Fundamental Rights was incorrect. The Judges ruled that
the Privileges may or may not be subservient to the remainder of the Fundamental Rights; however,
the argument that they were certainly not subservient was incorrect. Whether the privileges were
subservient to a particular Fundamental Right and therefore liable to be struck down in case of a
conflict with that right, would have to be determined on a case to case basis, as and when specific
Fundamental Rights were alleged to have been violated by the exercise of a privilege

Moreover, the Court attributed all of these findings to the Searchlight case ratio. The majority held
that the Searchlight Court had considered the Article 21 argument on merits. Hence it concluded
that the Searchlight Court did not preclude the application of all Fundamental Rights to privileges;
it precluded the application of Article 19(1)(a) only. Why else would the Searchlight Court have
considered the Article 21 argument at all, the majority asked? The Searchlight Court, the majority
concluded, never expressed an opinion that privileges are not subject to Fundamental Rights in
general; it merely expressed an opinion that privileges are not subject to Article 19(1)(a)
specifically. The fact that it inquired into the Article 21 argument on merits, was taken on proof
that the Searchlight Court must have intended to make the privileges subject to Article 21 atleast:

‘‘Therefore, we do not think it would be right to read the majority decision as laying down a
general proposition that whenever there is a conflict between the provision of the latter part of
Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter
must always yield to the former. The majority decision, therefore, must be taken to have settled
that Article 19(1)(a) would not apply, and Article 21 would.’’

The conclusive dictum of the Court may be summarized as follows: The right to speech and
expression guaranteed by Article 19(1)(a) would not override the privileges. The Court held thus
because it found itself bound by the Searchlight case.

The right to life and personal liberty guaranteed by Article 21 would override privileges. The Court
attributed this to the inquiry on merits of the Article 21 argument in the Searchlight case.

If privileges were subject and subservient to the right guaranteed by Article 21, they would also
be subject to the right guaranteed by Article 20. Finally, other Fundamental Rights may override
the privileges, but these would have to be determined as when they were impugned, on a case to
case basis. In order to appreciate the rationale of the pronouncement in this case, it is necessary to
step away for a moment from a legal analysis and dwell into the implication of the task faced by
the learned Judges:

1. The case was a Presidential Reference and therefore stood on a lower footing than an ordinary
pronouncement. The judgment would be strictly ‘advisory’.

2. The question before the Judges contained much more than a mere analysis of a facet of law.
The ruling would set the tone in future clashes between the Judiciary and the Legislatures in the
country. It was of singular importance that the independence of the Judges be maintained. A ruling
favor of the Legislatures may have been diastrophic to the cause of an independent Judiciary.

3. At stake was the dignity of Judges. If the Legislature was allowed to call Judges to the Bar of
the House for Contempt, it may have struck the death knell for the maintenance of a Court’s
dignity.
4. Lastly, the Court could not allow the impression that it had ruled in favor of the Judges due to a
vested interest in the matter being the Apex Court of the land. Necessarily, the judgment became
a fine balancing act.

The Court did not take an activist approach. It chose not to overrule the Searchlight case although
it had the strength to do so. Instead, the majority preferred to show themselves bound by the
Searchlight judgment, attributing to it the very conclusions it wished to draw. Having so
interpreted it, the majority forthwith found itself bound by the Searchlight judgment.

The ruling was rejected by the Uttar Pradesh Legislature as being advisory and obiter dicta.
However, it marked the beginning in the subservience of privileges to Fundamental Rights. The
reasoning was adopted in the Raja Ram Pal case giving it the force of settled law.

PV Narsimha Rao v. State

In the General Election for 10th Lok Sabha held in 1991 Congress (I) party emerged as the single
largest party and it formed the Government or P.V. Narasimha Rao. The support of 14 members
was needed to have the no-confidence motion defeated. On 28-7-1993, the no-confidence motion
was lost, 251 members having voted in support and 265 against. Certain members of the Lok
Sabha having allegiance to the Jharkhand Mukti Morcha (the JMM), Janata Dal, and Ajit Singh
group (the JD, AS) voted against the no-confidence motion. Ajit Singh abstained from voting
thereon. One Shri Ravindra Kumar filed a complaint on 1-2-1996 with the CBI wherein it was
alleged that in July 1993 a criminal conspiracy was hatched pursuant to which the above
members agreed to and did receive the bribes, to giving of which P.V. Narasimha Rao, MP and
Prime Minister, along with others were parties to vote against the no-confidence motion. A
prosecution was launched and cognizance was taken by the special Judge Delhi. The persons
sought to be charged as aforesaid, filed petitions in the Delhi High Court seeking to quash the
charges. The HC dismissed the petitions. Hence an appeal was filed in the Supreme Court of
India and then referred to a Constitution Bench.

Issues

1. Whether by virtue of article 105 of the Constitution of India, a Member of Parliament can
claim immunity from prosecution on a charge of bribery in a criminal court?
2. Whether a Member of Parliament is a “public servant” falling within the purview of the
Prevention of Corruption Act, 1988?
Narasimha Rao11 judgment blatantly took the literal interpretation of the provision 105(1) and
105(2) rather increased the scope of immunity under it. According to article 105(2) of the
Constitution of India a Member of the parliament is immune from any proceeding against him in
respect of any Vote or in respect of any speech made by the M.P in the parliament. According to
the provisions of the parliament such immunity is necessary in order to protect the integrity of
the Country. But such immunity cannot go beyond the ambit of the scope of the article. Article
105(1) of the constitution of India say that the freedom of speech in Parliament is absolute and
independent of Article 19. And Article 105(2) says that the constitution of India provides
Immunities of M. Ps in respect of anything said or any vote given by him in Parliament. But
these Immunities do not allow the MPs to accept bribes and indulge into immoral practices. The
right to indulge into bribe is nowhere explained in the Articles of the Constitution as it is an
illegal practice.

Conclusion

In “Parliamentary Privileges” there is a clear demarcation as to what all rights and privileges
are absolute and what is not. In India Legislative Assemblies and Parliament never discharge any
judicial function and their historical and constitutional background does not support their claim
to be regarded as courts of record in any sense. No immunity from scrutiny by courts of general
warrants issued by House in India can, therefore, be claimed.

Both the Parliament and State Legislatures have a duty to look carefully before making any law
so that it doesn’t harm other rights. It is also a duty of the members to properly use these
privileges and not misuse them for alternate purposes that are not in the favor of general interest
of nation and public at large.

Thus, what we must keep in mind is the fact that “power corrupts and absolute power corrupts
absolutely”. For this not to happen under the privileges granted, the public and the other
governing body should always be on vigil.

11PV Narsimha Rao v. State, AIR 1998 SC 2120: (1998) 4 SCC 626.
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