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Parliamentary Privileges Vis-a-Vis Right Of Publication Of Proceedings: A Critical Analysis

The term parliamentary privileges mean when Members of the two houses of parliament and their commissions possess exclusive protections, immunities, and exceptions known as parliamentary privileges. Under Article 105 of the Indian constitution, two forms of rights were originally envisaged. One is freedom of speech in Parliament and the right to publication of its proceedings. The Indian Constitution borrows the British Constitution's concept of parliamentary privilege. The very purpose of these privileges is to maintain the sovereignty of the Parliamentary office and its members.

The parliament cannot adopt any of the rights that exist in the House of Commons, but only those that are appropriate for our Indian democracy. Even the judiciary has indicated a tendency to interfere with parliament's operations. The Supreme Court, on the other hand, has to change its mind right now. It should place pressure on the legislature to codify and then implement legislative rights as quickly as possible.

If a lawsuit requiring statutory immunity ever appears before the court, it should pronounce the decision on a case-by-case basis. The existing state of affairs cannot be resolved until a codified statute is in effect that defines the rights, what constitutes a violation of such privileges, and what the repercussions of such a breach are.

Parliamentary Privileges

Parliamentary privilege is a legal prerogative enjoyed by the members of the two Houses and their committees, which also include the Attorney General and Union Ministers. The legislature's high and diverse duties require the exercise of parliamentary privilege.

According to Sir Thomas Erksine May, "parliamentary privileges are- The amount of the peculiar rights enjoyed by each house jointly is a constituent part of the High Court of Parliament, and by members of each house of parliament separately, without which they cannot perform their duties, and which outweigh those held by other bodies or persons. As a result, while privilege is a part of the law of the land, it is also an exception to the common law to a certain degree.

Certain protections and immunities, such as freedom from detention and freedom of expression, are reserved for the Members of each House and remain because the House cannot survive without the unrestricted use of its Members' services."

The term privilege is defined in the case of Raja Ram Pal v Speaker, Lok Sabha, 10 January 2007 as "A special right, advantage, or gain bestowed on a specific person. It is a distinct benefit or favor bestowed on one individual over another in the performance of specific acts."

In India, the privileges are codified in Article 105 and Article 194 of the Constitution, which specifies that a member of parliament has the right to free expression and may not be found accountable in any court over anything said or voted in Parliament or any committee thereof, no one shall be held responsible for any post, document, referendum, or proceedings written by or under the authority of either House of Parliament. Parliamentarians have been given this freedom so that matters of democratic policy can be resolved quickly, reliably, and without fear of being scrutinized. Art. 105's vocabulary has the same impact as Article 194's[1].

Provisions for Parliamentary privileges in the Constitution are:

Article 105: The Houses of Parliament, as well as their representatives and commissions, have some powers and rights.
  1. There shall be freedom of speech in Parliament, according to the terms of this constitution and the laws and standing orders governing Parliament's procedure.
  2. No Member of Parliament shall be liable in any court for anything said or voted in Parliament or any committee thereof, and no person shall be liable in any court for the printing of any article, document, voting, or proceedings by or under the jurisdiction of either House of Parliament.

Article 194: The House of Representatives, as well as its presidents and commissions, have some powers and rights.
  • Any State's Legislature shall have freedom of speech, according to the provisions of this Constitution and the laws and standing orders governing the Legislature's procedure.
  • No member of a State's Legislature or any committee thereof shall be liable in any court for anything said or voted in the Legislature or any committee thereof, and no individual shall be liable in any court for the publishing of any text, document, votes, or proceedings by or under the jurisdiction of a House of such a Legislature.


Pandit M.S.M. Sharma vs Shri Sri Krishna Singh and Others, 12 December, 1958.

In this case, the petitioner argued that the House's rights under A.194 (3) are subject to the provisions of Part 3 of the Constitution. The petitioner quoted the Supreme Court's verdict in Gunupati Keshavram Reddy v. Nafisul Hasan, 18 March 1952, in which the Home Minister was detained at his Bombay residence under a warrant issued by the Speaker of the House of Representatives.

For contempt of the House, he was flown to Lucknow and held in the Speaker's custody in a hotel. The Supreme Court ordered his release after he filed for a writ of habeas corpus and refused to appear before a magistrate within 24 hours of his arrest, as required by Article 22. As a result of this ruling, Article 194 was found to be subject to the Articles of Part III of the Constitution.

As a result, the Court determined that in this case, where a constitutional right under Article 19 (1) (a) and a privilege under Article 194 (3) disagreed, the privilege must prevail. In terms of Article 21, the Court found no infringement on the evidence. The State Legislature's Powers, Privileges, and Immunities, The holding in Sharma's case was clarified as not meaning that interests necessarily took priority over fundamental rights.[2]

Privileges that are individually enjoyed by the members are:
  1. Freedom of speech in Parliament.
    Members of parliament have been given the right to free speech and expression. Since a free and frank dialogue is at the heart of our representative democracy, everything they say while sharing their opinions and ideas is immune from legal prosecution and cannot be challenged in a court of law.

    "A citizen's right to freedom of speech and expression under Article 19(2) differs from a member of parliament's right to freedom of speech and expression. Article 105(1) of the Indian constitution preserves this freedom. However, the right is restricted by the laws and regulations that control the parliament's proceedings."

    Non-members who have a right to comment in the house are therefore offered this honor. For instance, consider India's attorney general. As a result, participants can participate in the debate without fear of being judged, and each participant can express his or her opinion without fear of being judged.
  2. Codification of parliamentary privileges.
    As a member of the Indian parliament, they have unmatched powers. They also abuse the privileges bestowed upon them because their rights are relatively unrestricted. They have the power to be the judge of their own case, to control their own case, and to decide what constitutes a crime and what penalties should be levied on it.

    They are excluded from detention for 40 days before, during, and after the session as a part of the immunity from civil arrest. To date, the parliament has not passed any substantive laws codifying legislative rights. However, the time has come to codify and identify the rights, and steps must be taken to ensure that the parliament runs effectively and without dispute.[3]

Privileges Enjoyed By The Members Collectively As Part Of Parliament
  1. Right to prohibit the publication of proceedings
    As stated in Article 105(2) of the Constitution, no person shall be held liable for publishing any reports, discussions, etc. of the house under the authority of the member of the house. For paramount and national importance, it is essential that the proceedings should be communicated to the public to aware them of what is going on in the parliament. But, any partial report of a detached part of proceedings or any publication made with malice intention is disentitled for the protection. Protection is only granted if it reflects the true proceedings of the house. If any expunged proceedings are published or any misrepresentation or misreporting is found, it is held to be a breach of the privilege and contempt of the house.
  2. Right to exclude strangers
    The members of the house have the power and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house. If any breach is reported then the punishment in the form of admonition, reprimand, or imprisonment can be given.
  3. The right to punish members and outsiders for breach of their privileges
    The Indian Parliament has the power to punish any person whether a stranger or any member of the house for any breach or contempt of the house. When any breach is committed by the member of the house, he/she is expelled from the house. This right has been defined as a 'keystone of parliamentary privilege' because, without this power, the house can suffer contempt and breach, and is very necessary to safeguard its authority and discharge its functions. In the majority of cases, the judiciary has maintained this power. Any individual or member of the house may be held in jail for contempt while the house is in session.
  4. The right to regulate the internal affairs of the house
    Each house has the authority to conduct its business in the manner it sees fit. Each house has its own authority over the house, and no authority from the other house can intervene with the house's internal affairs. Article 118 of the Constitution states that the house has been given authority to carry out its rules for trials, and it cannot be questioned in a court of law on the grounds that it is not following the rules established under Article 118. The Supreme Court has ruled that this is a general clause and that the law does not bind the assembly. They are free to deviate from or change the law at any moment.

Right Of Publication Of Proceeding

Clause (2) of A. 105 specifically states that no person shall be liable in respect of any text, document, voting, or proceedings released by order under the jurisdiction of a house of Parliament. Fair and reliable unofficial accounts of parliamentary trials, published in a journal, are entitled to qualified privilege rights under common law[4].

As a result, this defense did not apply to publications made by a private citizen without the consent of the building. Fair and reliable unofficial accounts of parliamentary hearings, published in a newspaper or otherwise, are entitled to qualified privilege rights under common law. The Constitution (44th Amendment) Act of 1978, on the other hand, has given publishing immunity a strong foundation. 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."

Parliamentary Privileges Can Be Defined In Relation To The Publication From Clause 1 And Clause 2:
  1. Freedom of speech and
  2. Freedom of publication of proceedings

Both houses of parliament are granted privileges to act freely and efficiently and to discharge their duties without hindrance or intervention. The privileges are granted to each house jointly as well as to its individual representatives. As a result, it can be deduced that the word privileges applied to the exclusive protections and benefits that members of parliament had over Indian citizens. Various scholars from around the world have interpreted the phrase privileges in terms of the rules and situations of their respective countries.

"No member of Parliament shall be liable in any court for anything said or voted in Parliament or any committee thereof, and no person shall be liable in any court for the publication of any report, paper, votes, or proceedings by or under the authority of either House of Parliament."

  1. K. Arulanandam v. Chief Secretary, Government of Madras, 2017.
    In this situation, it was agreed that, in terms of legal arrest requests, matters of Parliament had no special status relative to regular citizens.

    In India, the House of People's rules of practise grant the chair the right to act as it sees fit, strangers are not allowed in any area of the House when it is in secret session, and no strangers are allowed in the assembly, gallery, or galleries when the House is in secret session. Members of the Council of States and those approved by the Speaker are the only exceptions[5].
  2. Pandit M.S.M Sharma v. Shri Krishna Sinha, 12 December 1958. (known as the Searchlight case)
    In this case, An editor of a newspaper was charged with infringement of privilege after publishing portions of a member's speech delivered in the Bihar legislative assembly that the speaker had requested to be excluded from the proceedings of the Assembly. In a writ petition filed under Article 32, the editor claimed that the House of Commons lacked the authority to ban the release of either the officially seen and heard proceedings or the portion of the proceedings that had been ordered to be expunged. The petitioner's argument was dismissed by a 4-1 vote of the Supreme Court.

    Now, according to Article 361-A of the 44th Amendment, which took effect on June 20, 1979, no individual shall be liable to any civil or criminal prosecution for disclosing the proceedings of either House of Parliament or a State Legislature unless the reporting is shown to have been done with malice.

The members are granted privileges in order for the parliament to operate smoothly. However, since they are our leaders and activists for our interests, these rights must still be consistent with human right. If freedoms are not consistent with human rights, the basic purpose of democracy, which is to uphold citizens' rights, would be lost. It is the parliament's responsibility not to infringe on any other constitutionally protected freedom. Members should therefore make good use of their rights and not abuse them.

They will still be able to see that the powers do not corrupt them. The parliament can only adopt those rights that are appropriate for our Indian democracy, not those that exist in the House of Commons. The parliament cannot adopt any of the rights that exist in the House of Commons, but only those that are appropriate for our Indian democracy.

The codification would not only restrict parliamentarians' arbitrary rights, but it would also give the press and media more autonomy, protecting their right to freedom of speech and expression. This will result in a more open and responsible government, and public confidence in political agencies will be restored.

Thus, we must note that "power corrupts, and absolute power corrupts absolutely." To ensure that this does not occur when exercising the rights given, the public and all regulatory bodies must be vigilant at all times.

  1. Anjali Dixit, Indian Constitution and Parliamentary privileges, Into the legal world, (Mar. 27, 2020) ,
  2. Ashok Bhushan, law for all, Free legal consultancy, (May 9, 2018)
  3. Abraham Thomas, Free speech prevails, the pioneer, (Mar. 25, 2015),
  4. Preeti Singh, Parliamentary Privileges, academike, (Mar 15, 2019),
  5. Harsh Agrawal, Parliamentary privileges and Immunities, Ipleaders, (Feb 17, 2019),

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