Article 105 of Constitution

Subject : Polity

Section :Parliament

Concept :

Protesting against the expunction of parts of his speech on the motion of thanks on the President’s Address, Leader of Opposition in Rajya Sabha and Congress president Mallikarjun Kharge has argued that MPs have freedom of speech, and that he did not make any personal allegations in the House.

Origin of Parliamentary Privileges

The Government of India Act, 1935 first brought this provision to India, with references to the powers and privileges enjoyed by the House of Commons in Britain.
An initial draft of the Constitution too contained the reference to the House of Commons, but it was subsequently dropped.

Parliamentary Privileges

Parliamentary privileges are special rights, immunities and exemptions enjoyed by the two Houses of Parliament, their committees and their members.
These privileges are defined in Article 105 of the Indian Constitution.
Article 105 of the Constitution expressly mentions two privileges, that is, freedom of speech in Parliament and right of publication of its proceedings.
Apart from the privileges as specified in the Constitution, the Code of Civil Procedure, 1908, provides for freedom from arrest and detention of members under civil process .
The privileges are claimed only when the person is a member of the house.  As soon as s/he ends to be a member, the privileges are said to be called off.
This immunity extends to certain non-members as well, such as the Attorney General of India or a Minister who may not be a member but speaks in the House.
Parliament has not made any special law to exhaustively codify all the privileges. They are rather based on five sources:
Constitutional provisions
Various laws made by Parliament
Rules of both the Houses
Parliamentary conventions
Judicial interpretations.

Freedom of Speech in Parliament:

The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from the freedom of speech and expression provided to a member of the parliament.
It has been guaranteed under Article 105(1) of the Indian constitution. But the freedom is subject to rules and orders which regulate the proceedings of the parliament.

Limitations:

Freedom of speech should be in accordance with the constitutional provisions and subject to rules and procedures of the parliament, as stated under Article 118 of the Constitution.
Under Article 121 of the Constitution, the members of the parliament are restricted from discussing the conduct of the judges of the Supreme Court and the High Court.

Freedom from Arrest:

The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment of the house and also when the house is in session.
No member can be arrested from the limits of the parliament without the permission of the house to which s/he belongs so that there is no hindrance in performing their duties.
If the detention of any members of the parliament is made, the chairman or the speaker should be informed by the concerned authority, of the reason for the arrest.
But a member can be arrested outside the limits of the house on criminal charges against him under the Preventive Detention act, the Essential Services Maintenance Act (ESMA), the National Security Act (NSA), or any such act.

SC Observation :

A five-judge Bench of the apex court ruled that the ordinary law would not apply to the acceptance of a bribe by an MP in case of parliamentary proceedings.
“Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament,” the court said, giving a wider ambit to the protection accorded under Article 105(2).
In July 2021, the Supreme Court rejected Kerala government’s plea to withdraw criminal cases against its MLAs who were charged in the assembly.
The Supreme court stated that Parliamentary Privileges are Not Gateways of Immunity and the legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution.

Right to Prohibit the Publication of Proceedings:

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 either house of parliament .
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.

Collective privileges of the house:

Various privileges such as internal autonomy, power to punish for contempt in case of breach of privileges and also external interferences by strangers, freedom of speech in the debates, and the passing of resolutions expressing the collective opinion of the members for the public interest, rule-making powers, etc. can be enjoyed collectively by the House itself.