December 3, 2022

Powers and Privileges of the Parliamentarians and Legislators- In Detail

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. 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 have none.

Article 194 of the Indian Constitution, relates to the “Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof”. It is akin to the provisions contained in Article 105 that pertain to “Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof”.

A look to the provisions

Articles 105 and 194 run as follows: –

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 anything 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 coming into force 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 of Parliament or any committee thereof as they apply in relation to members of Parliament.”

194. Powers, privileges, etc., of the Houses of Legislatures 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 the Legislature, there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 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 of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.”

A look to the Judgments

Special Reference No.1 of 1964

In Special Reference No.1 of 1964[1], Supreme Court examined the provisions contained in Article 194. The issues concerned the constitutional relationship between the High Court and the State Legislature.

The President of India had made a Reference under Article 143(1) to supreme Court against the backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh and two Judges of the High Court.

The factual matrix of the case would show that the State Assembly had committed an individual to prison for its contempt. The prisoner had preferred a petition under Article 226 on which the judges of the High Court had ordered his release on interim bail. The State Assembly found that in entertaining the petition and granting bail, the judges of the High Court had also committed contempt of the State Legislature and thus issued process, amongst others, against the said two High Court Judges.

Supreme Court found that Article 194 (1) makes it clear that “the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature” and that while interpreting the said clause “it is necessary to emphasize that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature”.

In this view, it was the opinion of the Court that while Article 194 (1) “confers freedom of speech on the legislators within the legislative chamber”, Article 194(2) “makes it plain that the freedom is literally absolute and unfettered.”

Tej Kiran Jain v. N. Sanjiva Reddy

In Tej Kiran Jain v. N. Sanjiva Reddy (1971)[2], the issue was as to whether proceedings could be taken in a court of law in respect of what was said on the floor of Parliament in view of Article 105(2) of the Constitution.

It arose out of a suit for damages being filed against the respondents on the allegation that they had made defamatory statements on the floor of the Lok Sabha during a Calling Attention Motion against Shankaracharya. The High Court had ruled against the proposition.

Reference was made in appeal to an observation of this Court in Special Reference No.1 of 1964, where Supreme Court dealing with the provisions of Article 212 of the Constitution had pointed out that the immunity under that Article was against an alleged irregularity of procedure but not against an illegality, and contended that the same principle should be applied to determine whether what was said was outside the discussion on a Calling Attention Motion. It was submitted that the immunity granted by Article 105 (2) was to what was relevant to the business of Parliament and not to something that was utterly irrelevant.

Supreme Court, dealing with the contentions of the appellants, held as under: –

“In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. 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 consequences. 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 have none.”

Reference

Kuldip Nayar v. Union of India, (2003)


[1] [(1965) 1 SCR 413]

[2] [(1971) 1 SCR 612]