According to Erskine May, parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the “High Court of Parliament” 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.[1]
The term ‘High Court of Parliament’ dates back to the time when all powers of legislating and dispensing justice vested in the Monarch who in turn divested them to a body which would carry out the function of the legislature as the King sitting in the High Court of Parliament.
To that extent, the term is redundant in the Indian context where the Constitution is supreme and the power of the Parliament over its domain flows from and is defined by the Constitution. However, the definition provides an authoritative guide to understanding the meaning and remit of parliamentary privileges. The definition evidently divides privileges into two constituent elements. The first is the sum of rights enjoyed by the House of Parliament and the second is the rights enjoyed by members of the House individually.
Rights and immunities such as the power to regulate its own procedure, the power to punish for contempt of the House or to expel a member for the remainder of the session of the House, belong to the first element of privileges held by the House as a collective body for its proper functioning, protection of members, and vindication of its own authority and dignity. The second element of rights exercised individually by members of the House includes freedom of speech and freedom from arrest, among others.
The privilege exercised by members individually is in turn qualified by its necessity, in that the privilege must be such that “without which they could not discharge their functions.” These privileges enjoyed by members of the House individually are a means to ensure and facilitate the effective discharge of the collective functions of the House.
It must therefore be noted that whereas the privileges enjoyed by members of the House exceed those possessed by other bodies or individuals, they are not absolute or unqualified. The privilege of an individual member only extends insofar as it aids the House to function and without which the House may not be able to carry out its functions collectively.
Subhash C Kashyap has explained parliamentary privileges as they may be understood in the Indian context.[2] In his book on parliamentary procedure, the author has opined as follows:
“[…] In Parliamentary parlance the term ‘privilege means certain rights and immunities enjoyed by each House of Parliament and its Committees collectively, and by the members of each House individually without which they cannot discharge their functions efficiently and effectively. The object of parliamentary privilege is to safeguard the freedom, the authority and the dignity of the institution of Parliament and its members. They are granted by the Constitution to enable them to discharge their functions without any let or hindrance.
Parliamentary Privileges do not exempt members from the obligations to the society which apply to other citizens. Privileges of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the applications of the laws of the land unless there are good and sufficient reasons in the interest of Parliament itself to do so.
The fundamental principle is that all citizens including members of Parliament should be treated equally before the law. The privileges are available to members only when they are functioning in their capacity as members of Parliament and performing their parliamentary duties.”
The understanding which unequivocally emerges supports the claim that the privileges which accrue to members of the House individually are not an end in themselves. The purpose which privileges serve is that they are necessary for the House and its committees to function. Therefore, we may understand parliamentary privileges as those rights and immunities which allow the orderly, democratic, and smooth functioning of Parliament and without which the essential functioning of the House would be violated.
The framers of the Constitution intended to establish a responsible, responsive and representative democracy. The value and importance of such a democracy weighed heavily on the framers of the Constitution given the history of an oppressive colonial government to which India had been subjected. The history of parliamentary democracy shows that the colonial government denied India a responsible government where initially Indians were kept out of legislating on laws which would be enforced on its diverse social tapestry.
Even when Indians were allowed in legislatures, a responsive government which could be accountable to the people in a meaningful way was yet a distant reality in the colonial period. The ability of the legislature in turn to scrutinise the actions of the executive was effaced and despite the statutory guarantee of freedom of speech for members of the House in the Government of India Act 1919, the guarantee remained illusory to the extent that many subjects were restricted from being discussed in the legislatures.
In that sense, the foundations of a deliberative democracy premised on responsibility, responsiveness, and representation sought to ensure that the executive government of the day is elected by and responsible to the Parliament or Legislative Assemblies which comprise of elected representatives. These representatives would be able to express their views on behalf of the citizens and ensure that the government lends ear to their aspirations, complaints and grievances.
This aspect of the functioning of the House is essential to sustain a meaningful democracy. This necessitates that members of the House be able to attend the House and thereafter speak their minds without fear of being harassed by the executive or any other person or body on the basis of their actions as members of the House in the exercise of their duties. In the absence of this feature Parliament and the state legislatures would lose the essence of their representative character in a democratic polity.
The privileges enshrined under Article 105 and Article 194 of the Constitution are of the widest amplitude but to the extent that they serve the aims for which they have been granted. The framers of the Constitution would not have intended to grant to the legislatures those rights which may not serve any purpose for the proper functioning of the House. The privileges of the members of the House individually bear a functional relationship to the ability of the House to collectively fulfil its functioning and vindicate its authority and dignity.
In other words, these freedoms are necessary to be in furtherance of fertilizing a deliberative, critical, and responsive democracy.
In State of Kerala v. K Ajith,[3] DY Chandrachud, J. held that a member of the legislature, the opposition included, has a right to protest on the floor of the legislature. However, the said right guaranteed under Article 105(1) of the Constitution would not exclude the application of ordinary criminal law against acts not in direct exercise of the duties of the individual as a member of the House.
Supreme Court held that the Constitution recognises privileges and immunities to create an environment in which members of the House can perform their functions and discharge their duties freely. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal.
MN Kaul and SL Shakdher have in their celebrated work on the Practice and Procedure of Parliament endorsed this view by stating that[4] “In modern times, parliamentary privilege has to be viewed from a different angle than in the earlier days of the struggle of Parliament against the executive authority.
Privilege at that time was regarded as a protection of the members of Parliament against an executive authority not responsible to Parliament. The entire background in which privileges of Parliament are now viewed has changed because the Executive is now responsible to Parliament. The foundation upon which they rest is the maintenance of the dignity and independence of the House and of its members.”
The privileges enjoyed by members of the House are tethered intrinsically to the functioning of the House collectively. A House of Parliament or Legislature functions through the collective will of its individual members. These members acting as constituents of the House may not claim any privilege or immunity unconnected with the working of the entire House.
While some cherished freedoms exercised individually by members of the House, including the freedom of speech, have been undeniably understood to be essential to the functioning of the House as a whole, other exercises such as damaging public property or committing violence are not and cannot be deemed to have immunity. The privileges and immunities enshrined in Articles 105 and 194 of the Constitution with respect to Houses of Parliament and the Legislatures, their members and committees, respectively belong to the House collectively.
[1] Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th ed.
(2019) 239.
[2] Subhash C. Kashyap, Parliamentary Procedure—Law, Privileges, Practice and Precedents, 3rd ed.,
Universal Law Publishing Co, 502.
[3] (2021) 17 SCC 318.
[4] MN Kaul and SL Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat, Metropolitan
Book Co. Pvt. Ltd., 7th ed., 229