Parliamentary privileges, which are exceptional rights or advantages, are
granted to members of legislatures everywhere in the globe.1 In most
democracies, the legislatures and their members receive certain benefits in
order to accomplish well. Privilege is considered in some ways an exemption to
the general law, even if it is an element of the state's regulations. It would
be accurate to say that the Prerogative belongs to the Crown and Privilege to
Parliament. The Crown is allowed to exercise its powers without hindrance from
either Parliament or the courts, and the House of Representatives and Council of
States is also free to execute its privileges without their aid or intervention.
One of the rare historical occurrences in which representative institutions were
gradually established and developed by a foreign power was in India
- The members in each house of parliament and the committees within each
house are granted exemptions, rights, or immunities to ensure their
independence and the efficacy of their decisions.2
- The parliamentary privileges support the upkeep of the members of
parliament's honor, dignity, and power.
- The members of the houses are protected by the parliamentary privileges
from any interference with their ability to carry out their duties.3
In India, parliamentary privileges fall into two categories:
- Collective Privileges: Privileges available to the entire body of the
For instance, the Indian parliament enjoys the ability to bar outsiders from
Those are the advantages given to each member of legislature separately. For
instance, a member of the legislature cannot be arrested while it is in session.
Additionally, members cannot be detained 40 days before or after the session's
start or finish.4
Under Articles 105 and 194, members of the parliament are given privileges or
benefits that allow them to carry out their duties or conduct business as normal
without intervention. These privileges are granted because they are necessary
for a democratic government to operate. These rights, privileges, & immunities
should be defined legally on a regular basis. These rights are thought of as
unique provisions that are given primacy in a dispute.
The following case raises the question of Parliamentary privileges. It brings
into the attention Article 194. Raises and answers the question whether
Questions unasked in Parliament can be published in the Media.
The appellant intended to ask specific inquiries during the assembly, therefore
he gave notice of that purpose. The proposed assembly questions were rejected.
In a local publication called JANAMAT, the appellant printed those inquiries
that he was not permitted to make in the assembly. 5
The court then decides whether Mr Ghosh was right or not.
Judge - Hon. Chief Justice Bhuwaneshwar Prasad
Date - April 11, 1956
The petitioner is a West Bengal State Parliament member who is an Indian
citizen. The appellant informed the assembly of his plan to raise certain
questions in January 1954. According to the regulations for how the Assembly
conducts business, those inquiries were not permitted. The appellant was
notified that the questions he had proposed were not acceptable in February
A local publication called "Janamat," in its edition of February 28, 1955,
carried the queries that had been rejected by the appellant.In July 1955, the
first respondent, he was at the time the Sub Divisional Magistrate and whose
activities served as the foundation for the investigation, filed a lawsuit
versus the petitioner & two other individuals. These three individuals, in that
order, served as the journal's editor in chief, printer, and publisher.
The complaint petition alleged that the appellant had made as well as posted
scandalous allegations about the complainant with an expectation that they could
be read by the public, that these allegations were untrue as well unfounded and
that they were posted with the specific goal of harming or with the knowledge
that they would cause damage to the complaining party's reputation, and that the
complainant felt deeply hurt and that the allegations had a negative impact on
his public image mental health. 7
Additionally, he claimed that because the complainant worked for the government,
it took longer than expected for the petition to be filed because the
complainant needed approval from the government to start legal procedures to
defend his reputation as a public servant. The third and second accused, who
have been identified as respondents 2 and 3 were charged under S501, while the
appellant was charged under S500 of Indian Penal Code. After multiple
adjournments, the petitioner brought up the issue of his absolute privilege
(parliamentary privilege) and immunity under the Constitution as a preliminary
objection to the criminal prosecution. 8
In a ruling dated October 11, 1955, the experienced Magistrate rejected the
argument and determined that the privilege asserted by the defendant wasn't one
that was unqualified. He came to the conclusion that the initial accused, who is
now the appellant, was not entitled to the privilege and immunity claimed by him
based on a decision made by the Calcutta High Court in the proceeding of Dr.
Suresh Chandra Banerjee against Punit Goala, 55 Cal WN 7459.
The appellant then asked that the matter be withdrawn from the high court so
that the constitutional issue he had presented in defense may be resolved in
accordance with Article 228 in the Constitution10. However, the Bench of the
High Court rejected the appellant's request on November 9, 1955, presumably upon
the grounds that the case did not involve any significant constitutional
interpretation legal issues. Unfazed by the disapproving order indicated by the
High Court Bench, the petitioner sought the high court's ruling once more on a
number of grounds, including the question of the proceeding being prohibited
under Art. 194 of the Constitution.
The learned Single Judge who handled the case on this occasion highlighted the
position that in legal terms, the issue of constitutionality could not be
stirred due to the aforementioned Bench ruling.
Yet, the learned Judge still addressed the appellant's issues, including the
issue created by Article 194. The learned Court denied the application, stating
that members of the legislative assembly lacked absolute privilege with regard
to the issues he had attempted to raise but had nonetheless published because
they had been denied. Additionally, it was noted that as the questions had never
been raised in the House, they could not be considered to be a part of its
The learned Court nevertheless addressed the points raised by the appellant,
including the one brought on by Article 194. The learned Court rejected the
application, ruling that the member of legislature lacked absolute privileges
with regard to the arguments he had attempted to address but had nevertheless
published because they had been rejected. Additionally, it was stated that the
queries could not be regarded as a part of the House's proceedings since they
had never been raised there.
Despite the order of expediency,which was passed on October 1 1956 the matter
wasn't tried until four years later.
The appellant has argued in this Court that the learned Judge below erred in his
interpretation of Article 194 and on a proper interpretation and making of the
provisions it should be held that: (1) questions to be asked by the
parliamentarians, although they were rejected by the Speaker, formed part of the
proceedings of the House, and as a result, their publication would not be
subject to the proviso;
(2) The provisions of Art. 194 should be liberally determined in favour of
people, such as elected representatives of the Assembly, who perform public
service by speaking and asking questions in the Assembly as well as publishing
those speeches and questions in the press to inform the country and, in
particular, their constituency, of the events that had been happening in the
House. In a nutshell, it was claimed that a member enjoyed an unalienable right
to publish questions they had attempted to submit but which the Speaker
dismissed without suffering any consequences.11
Article 194 is the basis of the case.
The petitioner raised his total privilege and immunity from prosecution under
the Constitution as an initial challenge to the criminal prosecution following
numerous adjournments. The learned Magistrate rejected the argument in his order
from October II, 1955, and found that the privilege claimed by the individual
being charged wasn't one that had been unqualified. Based on a ruling by the
Calcutta High Court in the case of Dr. Suresh Chandra Banerjee v. Punit Goala,
he concluded that the original accused, who has since become the appellant, was
not entitled to both the privilege & immunity claimed by him.
High Court for resolution of the question of constitutionality he brought up as
a defense, but that application was dismissed on November 9, 1955, most likely
on the grounds that there was no significant legal issue relative to the
drafting of the Constitution that needed to be resolved in the case.
Once more requesting a ruling from the High Court on a variety of issues,
including the issue of whether the proceedings were forbidden by the terms of
Article 194 in the Constitution of India.
The learned Judge denied the application, stating that the member of the
legislature lacked absolute privilege with regard to the issues he had attempted
to raise but had nonetheless published because they had been denied.
Additionally, it was noted that as the questions weren't ever raised in the
House, they could not be considered to be a part of its proceedings. The
publishing in a newspaper at the appellant's request, he said, could under no
circumstances be considered to have been authorized by the House.
The High Court's decision to reject the claim for privilege was then appealed by
the appellant to this Court, where he was granted special leave to do so.
Additionally, he was able to stop further court procedures in the magistrate's
It has been argued on behalf of the appellant in this Court the fact that the
learned court judge below erred in his ruling regarding the provisions of
Article 194 in the Constitution along with that, on a proper construction, it
ought to have been determined that: (1) questions sought to be inquired by a
member of the Legislative Assembly, despite being rejected by the Speaker,
established a part of the proceedings for the legislature, and therefore, as a
result, the publication of the answers to those questions was appropriate; and
(2) The regulations of Art. 194 ought to be liberally interpreted in favor of
people like elected Assembly members who serve the public interest by not only
making speeches while asking questions during the Assembly, but additionally by
publishing those speeches and questions in the accessible press in order to
inform the nation and, in particular, the constituency, of what was happening in
the Assembly. 13
Because the concept of free speech has not been mentioned in a state
legislature, the first sentence of Article 194 is not required to be explained
in this situation. No person will be held accountable in a civil or criminal
case in regard to the publication of any research, paper, votes, and proceedings
in the course of or during the legislative, in accordance with Clause (2) of
that Article. In the first place, this clause forbids any legal action civil or
to be taken against a member of the state's parliament because of
something they have said or voted on in an assembly or committee.
3) of Section 194. Does a legislator who publishes a question which has been
rejected have any privileges, rights, or immunities? This Court carefully
considered these rights in the case of M. S. M. Sharma v. Sri Krishna Sinha (1)
regarding the publication of a speech segment that the Speaker had directed be
withdrawn from the House's business. 14
Another notable exception is IPC Sections 499 & 500 in the IPC (Indian Penal
Code) which cover the law of defamation. Several exclusions are included in
Section 499. What is not slander is outlined in those instances. Publishing a
basically true account of the court of justice's procedures is not considered
defamation, according to the fourth exception, although the House of
Representatives or Parliament's proceedings are not covered.
Analysis of Judgment
Right to Publication under the Parliament.
No one shall be accountable with respect to the publishing by order within the
power of a house in Parliament of any study, paper, votes, or proceeding,
according to Clause (2) in Article 105.
If done with House authorization, everyone involved in publishing House
proceedings is protected.
If a publication is produced without the House's consent, there is no
Limits of what is Parliamentary Proceeding.
It is established law that the prosecution against the appellant cannot be
dropped unless he can establish an absolute privilege in his own favor with
regard to the publication that is the focus of the accusation in this case.
13 and 14 - High court order
(The court stated that because there has been no mention of the issue of free
expression in a state legislature, the first clause of Art. 194 does not require
any remark in this case.
In accordance with Clause (2) of the Article, no member of a State's legislature
may be the subject of any civil or criminal action as a result of whatever he
has said or voted on in the legislature or any committee of the legislature; and
The publishing of any report, paper, vote, or other proceeding made pursuant to
the power of a House of such a Legislature shall not subject any individual to
liability in a civil or criminal process. The West Bengal Legislative Assembly
did not have control over the publication that was the subject of the current
complaint. Therefore, the appellant's argument could not be supported by the
second part of the second clause of Article 194. Furthermore, the court ruled
that the case fell under the first clause's definition of "anything said or any
vote given" by a Legislative Assembly member.
As a result, it was only natural for the Court to rely on the requirements of
Art. 194's cl. (3) during its deliberations.
If the comparison between reports of judicial proceedings and those in
Parliament is accurate, it should be noted that all restrictions put in place
for one to prevent injustice to individuals have to automatically be extended to
the other; a report that is unclear or inaccurate, or one that only contains
detached portions of proceedings, issued with the intent to harm individuals,
will not be entitled to protection. As previously stated, a House of a
Legislature and Parliament, or its members, have the same rights, powers, with
immunities as the House of Commons, so long as Parliament doesn't codify the
legal position through its own legislation.
It is settled law that the appellant cannot have the prosecution against him
dismissed unless he can show that he has an absolute privilege with respect to
the publication that is the subject of the charge in this instance. Since we
have identified, in accordance with the High Court, that he is not entitled to
such an absolute privilege, he must take part in his trial and start mounting
any defenses he might have.
The appeal was turned down.
Due to a number of considerations, including context, purpose, and other
pertinent laws or constitutional requirements, articles 105 and 194 of the
Indian Constitution are not absolute in nature. These clauses could be
interpreted, limited, and subject to judicial review as well as interpretation
by the courts. As a result, their application and scope may not always be
clear-cut and may depend on a number of variables.
Here, although various websites mention that Jatish Chandra was right in
exercising his parliamentary privilege, the questions never formed the part of
proceedings of the parliament and hence the rights can not be enforced.
Award Winning Article Is Written By: Mr.Somitra Vardhan Dubey, BALLB DNLU
Authentication No: OT328223707657-9-1023