Parliamentary Privileges 

Under the constitutional law and in the arena of Indian Parliament, the expression “privilege
and immunity” signifies certain special or exceptional rights of Lok Sabha or Rajya Sabha or
its individual members which are generally accepted as necessary for the exercise of their
constitutional functions.
The Parliament has not yet codified its privileges. In fact, the privileges rest on conventions
and they may be ascertained by the practice and law that is in force In England.
The Privileges and immunities enjoyed by the members individually:
1. Freedom of speech,
2. Freedom from arrest and
3. Exemption from attendance as witnesses.
Freedom of speech:
However, the Rules of procedure for the conduct of Business in the Houses of Parliament put
certain restrictions on this freedom. That is, a member’s freedom of speech should be in
conformity to the rules framed by the House to regulate its internal procedure.
Furthermore, the privilege of freedom of speech does not mean an unrestricted license of
speech. For example, our Constitution forbids discussion in Parliament on the conduct of
judges except on motion for their removal. In this connection, it may be pointed out that in
India, there have been clashes between freedom of speech as guaranteed to the members
of .parliament and fundamental rights as given to the people under Article 19 (1) (a) of the
constitution.
The Supreme Court in the case of Tej Kiran Jain v Sanjeeva Reddy held that “once it is
proved that parliament was sitting and its business was being transacted, anything said during
the course of that business was immune from proceeding in any court”.
In a much-publicized matter involving former Prime Minister, several ministers, Members of
Parliament and others a divided Court, in P.V. Narsimha Rao v. State (JMM Bribery Case)
has held that the privilege of immunity from courts proceedings in Article 105 (2) extends
even to bribes taken by the Members of Parliament for the purpose of voting in a particular
manner in Parliament.
So interpreted, it would include within its ambit, acceptance of a bribe by a member in order
to make a speech or to cast his vote in parliament or any committee thereof in a particular
manner.
Therefore, the bribe taker MPs, who had voted in parliament against no-confidence motion
were held entitled to the protection of Article 105(2) and were not answerable in a court of
law for alleged conspiracy and agreement. The court further held that the bribe taker MP,
who did not vote on the no-confidence motion was not entitled to protection under Article
105(2). The court further ruled that the Lok Sabha could take action for breach of privileges
or contempt against the alleged bribe givers and against the alleged bribe takers, whether or
not they were members of parliament.
The court was however unanimous that the members of Parliament who gave bribes, or who
took bribes but did not participate in the voting could not claim immunity from court
proceeding’s under Article 105(2). The decision has invoked so much controversy and
dissatisfaction that a review petition was filed in the court but dismissed.
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 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.

Freedom from Arrest:

The members of Parliament also enjoy freedom from arrest. From this freedom it is
understood that no such member shall be arrested in a civil case 40 days before and after the
session of the House (Lok Sabha or Rajya Sabha) and also when the House is in session.
This privilege does not extend to arrests or imprisonment on a criminal charge or contempt of
court or to preventive detention. However, in case a member is so arrested, Rule 261 of Lok
Sabha lays down a duty of the detaining authority to communicate to the house to which
member belongs, the reasons for arrest or detention, the time of arrest, the place where he is
detained or imprisoned and the period for which the member is detained or arrested. It has
been held in K. Anandan Nambiar  v. Chief Secretary, Governor of Madras , that members
of Parliament do not enjoy any special status as compared to an ordinary citizen in respect of
valid orders of detention. A member can be arrested outside the four walls of the House on
criminal cases under the Preventive Detention, ESMA, NSA, POTA or any other such Act.
Freedom of attendance as witnesses: 
The members of Parliament also enjoy freedom from attendance as a witness.
 
Privileges of the House Collectively
There are also some other privileges which the House (Lok Sabha or Rajya Sabha)
collectively enjoys. These are:
1. The right to publish debates and proceedings: 
Though by convention, the Parliament does not prohibit the press to publish its proceedings,
yet technically the House has every such right to forbid such publication.
Again, while a member has the privilege of freedom of speech in Parliament, he has no right
to publish it outside Parliament. Anyone violating this rule can be held responsible for any
libelous matter it may contain under the common law rules.
In Gunupati Keshavram Reddi v. Nafisul Hasan,[1954]one  Homi Mistry was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for
contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s custody.
On his applying for a writ of habeas corpus on the ground that his detention was in violation
of Article 22(2), the Supreme Court quashed the detention and ordered his release as he had
not been produced before a Magistrate within 24 hours of his arrest as provided in Article 22
(2). This decision, therefore, indicated that Article 194 (or Article 105) was subject to the
fundamental right guaranteed under Article 22(2) in Part III of the Constitution.

In Pandit M.S.M Sharma v. Shri Krishna Sinha, AIR 1959 SC 395 , popularly known
as Searchlight case proceedings for the breach of privilege had been started against an editor
of a newspaper for publishing those parts of the speech of a member delivered in Bihar
legislative assembly which the speaker had ordered to be expunged from the proceedings of
the Assembly.
Now Article 361-A inserted by the 44th Amendment Act, 1978 with effect from June 20,
1979, provides that no person shall be liable to any proceedings civil or criminal for reporting
the proceedings of either House of Parliament or a State Legislature unless the reporting is
proved to have been made with malice. This provision does not apply to the reporting of
proceedings of secret sittings of the Houses.
……
Pandit Sharma, the petitioner in that case was" editor of an English Daily Newspaper
"Searchlight" of Patna. He invited the wrath of the legislative assembly of Bihar by
publishing extracts from proceedings of the legislative assembly including certain parts
which had been ordered to be expunged by the Speaker. In this context, the Speaker had
referred the matter to the Privileges Committee of the assembly which in turn issued a show
cause notice to him. Pandit Sharma brought writ petition in this court under Article 32 of the
Constitution of India alleging that the proceedings initiated by the legislative assembly had
violated his fundamental right of speech and expression under Article 19 (1) (a) as also the
fundamental right of protection of his personal liberty under Article 21. The case was decided
by a Constitution Bench (five Judges) The writ petition of Pandit Sharma was dismissed on
the basis of majority view, inter alia, holding that the legislatures in India were vested with
the power or privilege of prohibiting the publication of debates or proceedings that took place
in the House, of even a true and faithful report, as indeed of an inaccurate or garbled version
thereof. It was further held that the powers, privileges and immunities available in terms of
Articles 105(3) and 194(3) stood in the same supreme position as the provisions of Part III of
the Constitution and could not be affected by Article 13 and, therefore, the principle of
harmonious construction required to be adopted. The court concluded that the fundamental
right of free speech and expression under Article 19(1)(a) being general in nature must yield
to Article 194(1) and the latter part, of Article 194(3) which are special provisions. The
challenge to the proceedings under Article 194(3) on the basis of Article 21 was also repelled
on the ground of it being "in accordance with the procedure established by law" in as much as
the rules framed by the legislative assembly under Article 208 laid down the procedure. The
case of Pandit Sharma did not end there. Subsequently, the legislative assembly of Bihar
came to be prorogued several times and the committee of privileges was also reconstituted.
This led to a fresh notice being issued to Pandit Sharma in the wake of which he brought
another writ petition under Article 32 of the Constitution, substantially raising the same
questions and contentions as had been agitated in the earlier proceedings by him before the
court. This writ petition was dismissed by the Constitution Bench (eight Judges). The
judgment is reported as M.S.M. Sharma v. Shree Krishna Sinha AIR 1960 SC 1186

 
2. The right to exclude strangers:
Each House of Parliament enjoys the right to exclude strangers (no-members or visitors) from
the galleries at any time and to resolve to debate with closed doors.
The punishment may be in the form of admonition, reprimand, or imprisonment.
3. The right to punish members and outsiders for breach of its privileges/
Contempt of House: 
A breach of privilege is a violation of any of the privileges of MPs/Parliament. The
punishment in case of breach of privilege or contempt of the House is that the house can
ensure attendance of the offending person. The person can be given a warning and let
go or be sent to prison as the case may be.

The Parliament has been given punitive powers to punish those who are adjudged guilty of
contempt of the House. Such contempt can be committed by the members of any House or
any outsider.
When a member of the House is involved for parliamentary misbehavior or commits
contempt he can be expelled from the House.
The right to regulate the internal affairs of the House: In Indian Union, each House is a High
court of Parliament. Therefore, the House has the right to regulate its internal affairs. A
member of the House is free to say whatever he likes subject only to the internal discipline of
the House or the Committee concerned.

The conflict between legislative privileges and the law courts came to be resolved by
Supreme Court a reference case, popularly known as Keshava Singh’s Case (Keshav Singh
vs Speaker, Legislative Assembly) or U.P. Assembly Case, 1965.
In this case, one Keshava Singh, a non- member, of the U.P. Assembly printed and published
a pamphlet. The Speaker of the U.P. Legislative Assembly reprimanded him for contempt
and breach of the privilege of the member Mr. Narsingh Naraina Pandey. On the same day,
Mr. Keshava Singh, who was present in the house, by his conduct, committed another
contempt in the house. The Speaker, thereupon, directed Mr. Keshava Singh to be admitted to
prison. A warrant was issued for his detention in the jail for 7 days and he was so detained.
Mr. Soloman, his advocate, moved under Section 491 CrPC read with Article 226, a Habeas
Corpus petition alleging that his detention in jail was illegal and malafide because he was not
given an opportunity to defend himself. The petition was heard by 2 Judges of Allahabad
High Court which granted interim bail to Keshava Singh and he was released, pending the
decision of the case on merit.
On this, the Assembly, by a resolution took the view that the 2 Judges, Mr. Keshava Singh,
and Mr. Soloman had committed Contempt of the Assembly and ordered that the Keshava
Singh be immediately taken into custody and the 2 Judges and the Advocate be brought in
custody before the House. At this, the 2 Judges and the Advocate, by separate petitions
moved under 226 the High Court, contended that the resolution amounted to contempt of
court and that it be set aside and its implementation be stayed by the interim order.
The petition was heard by the Full Bench of all the 28 Judges of the Allahabad High Court.
The court ordered the stay of implementation of the resolution. The assembly modified its
order and the warrant against the 2 Judges was withdraw, but they were asked to appear
before the House and explain their conduct. The Judges moved an application before the
Court against the modified order and the Court granted the stay against the implementation of
the later order.
At this stage, the President referred the matter to the Supreme Court, invoking the provisions
of Article 143(1), for obtaining its advisory opinion. The main questions referred to were-
1. Whether the legislature is the sole and exclusive Judge of its privileges and whether it
is competent to punish a person for its contempt taking place outside the Legislature?
2. Whether the High Court who entertained a petition of habeas corpus challenging the
validity of the detention of a person sentenced by the assembly under a general or
unspeaking warrant has committed contempt of the Legislature?
The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit the contempt
of the house by issuing an interim bail order. The Court explained that the Court under
Article 226 had jurisdiction to order the release of a person from illegal detention.
The Court said that the courts in India could examine the validity of detention of a person,
sentenced by the Assembly, under a general or unspeaking warrant.