Article 105 & 194:

Parliamentary & State

Legislative Privileges
under Indian Constitution
Introduction
Article 105 and Article 194 grant privileges or advantages to the members of
the parliament so that they can perform their duties or can function properly
without any hindrances. Such privileges are granted as they are needed for
democratic functioning. These powers, privileges and immunities should be
defined by the law from time-to-time. These privileges are considered as
special provisions and have an overriding effect in conflict.

Privileges mentioned in the

constitution
Freedom of speech and publication under
parliamentary authority
This is defined under Article 105(1) and clause (2). It gives the members of
parliament freedom of speech under clause (1) and provides under Article
105(2) that no member of parliament will be liable in any proceedings before
any Court for anything said or any vote given by him in the Parliament or any
committee thereof. Also, no person will be held liable for any publication of
any report, paper, votes or proceedings if the publication is made by the
parliament or any authority under it.

The same provisions are stated under Article 194, in that members of the
legislature of a state is referred instead of members of parliament.

Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks
about freedom of speech. Article 105 applies to the members of parliament
not subjected to any reasonable restriction. Article19(1)(a) applies to citizens
but are subject to reasonable restrictions.

Article 105 is an absolute privilege given to the members of the parliament

but this privilege can be used in the premises of the parliament and not
outside the parliament.
If any statement or anything is published outside the parliament by any
member and if that is reasonably restricted under freedom of speech then
that published article or statement will be considered as defamatory.

Case Law

Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And

Others, AIR 1961 SC 613
The appellant is an elected member of the West Bengal Legislative Assembly.
The appellant had an intention to ask certain questions in the assembly and
therefore he gave the notice for the same. The questions to be asked in the
assembly were refused in compliance with the rules of procedure for the
conduct of the business in the assembly. But the appellant published those
questions he was not allowed to ask in the assembly in a local newspaper
called JANAMAT.

The first respondent, who was then functioning as a Sub-Divisional Magistrate

and because of whose conduct the matter of questions arose, filed a
complaint against the appellant and two others, the editor and the printer
and publisher of those questions.

The petition contained the fact that the appellant had made slanderous
accusations against him with an intention to be read by the members of the
public. These accusations were false and the appellant published them,
having an intention of harming the reputation of the complainant. He also
alleged that publishing such false questions in the journal first requires prior
permission by the government in instituting the legal proceeding against the
public servant.

In this case, it was held that the provisions of Article 194 even though
disallowed by the speaker were a part of the proceedings of the house and
publication for the same will not attract any sections of the Indian Penal
Code.

He will not be prosecuted, as Article 194(1) not only gives them freedom of
speech but also give the right to ask questions and publish them in the
press.

P.V. NARSIMHA RAO v. STATE (1998)

The facts of the case are – some of the MP’s received bribes to vote against
the motion of no-confidence against the Prime Minister P.V. Narsimha Rao. He
was charged under IPC and Prevention of Corruption Act on the grounds that
he bribed some MPs to vote against the no-confidence motion when he was
serving as the Prime Minister. In this case, the question arose that under
Article 105(2) does any member of parliament have any immunity to protect
himself in criminal proceedings against him?

It was held by the majority of the Court that under Article 105(2) the
members of the parliament will get immunity and thus, the activity of taking
bribe by the MP’s will get immunity despite anything said by them or any
vote given by them in the Parliament. The Court further explained that the
word “anything” here will be interpreted as a wider term. The Court
interpreted the term “anything” in a wider sense and did not prosecute P.V.
Narsimha Rao.

Power to make rules

The Parliament has the power, which is given by the Constitution of India, to
make its own rules but this power is subjected to the provisions of the
Constitution. Though it can make its own rules, the rules should not be made
for its own benefit. If they make any rule which infringes any provision of the
Constitution then it would be held as void.

Internal independence/autonomy
For the effective working of both the houses of parliament and their
members, internal independence should exist without the interference of any
outside party or person. The houses can deal with their respective issues
internally without any interference of the statutory authority.

The Indian Judiciary might not interfere with the proceedings or issues dealt
in the parliament or by the members in the course of their business.
Nevertheless, it may interfere in the proceedings if it is found to be illegal or
unconstitutional.

Freedom from being arrested

The member of parliament cannot be arrested 40 days before and 40 days
after the session of the house. If in any case a member of Parliament is
arrested within this period, the concerned person should be released in order
to attend the session freely.

Right to exclude strangers from its

proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or
threatening any of the members. The strangers may attempt to interrupt the
sessions.

Right to prohibit the publication of its

reporters and proceedings
The right has been granted to remove or delete any part of the proceedings
took place in the house.

Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has
the right to call for the session of the Legislative assembly. But it does not
have any authority in interrupting the proceedings by directing the speaker of
the assembly.

Right to punish members or outsiders for

contempt
This right has been given to every house of the Parliament. If any of its
members or maybe non-members commit contempt or breach any of the
privileges given to him/her, the houses may punish the person.

The houses have the right to punish any person for any contempt made
against the houses in the present or in the past.

Privileges and fundamental rights

Part III of the Constitution contains fundamental rights wherein Article 19(1)
(a) grants freedom of speech to the citizens. It is subjected to reasonable
restrictions. These restrictions are:-

 Sovereignty and integrity of India should be maintained,

 Security of the states should be maintained,
 Public order should not be disturbed,
 Decency and morality should be maintained,
 Defamation should be avoided,
  Incitement to an offence should be avoided,
 Contempt of court should be avoided,
 Friendly relations with foreign states should be maintained.
Where on the other hand the members of parliament have been granted
powers, privileges etc. their powers or privileges are absolute unlike
fundamental rights for the citizens.

The Parliament enjoys mostly all the supreme powers while making laws and
exercise its power to the best possible extent because of the absolute nature
of its powers and privileges.

The powers of the legislators are too wide such as they decide their own
privileges, include points which can breach the laid down privileges, and also
decide the punishment for that breach.

Article 105(3) and Article 194(3) states that the parliament should from time
to time define the laws or pass the laws on the powers, privileges and
immunities of the members of the parliament and members of the legislative
assembly.

Case Law

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of

U.P AIR 1952
The facts of the case:- The U.P. Legislative Assembly issued a warrant against
the Home Minister who was arrested from his residence in Bombay on the
ground of contempt of the house. The Home Minister under Article 32 applied
a writ of Habeas Corpus on the ground that his detention under Article
22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release
according to Article 22(2). He was not presented before the magistrate within
24hrs of his arrest or detention. Not presenting him before the magistrate
resulted in the violation of his fundamental right under Article 22(2). In this
case, it was opined that Article 105 and Article 194 cannot supersede the
fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:-the petitioner is the editor of the English Daily
newspaper of Patna. He published a report on the proceedings of the Bihar
Legislative Assembly and the reports were said to be removed by the
speaker.
The editor was presented before the Legislative Assembly to give reasons for
the breach of privilege committed by him. At first, he was held guilty for his
conduct. Then, in an appeal, the editor under Article 19 (1)(a) argued that he
has a right to freedom of speech. But the Court denied all the arguments
based on Article 19(1)(a) as it is a general provision and Article 194 is a
special provision. If at any time both of these articles come under any conflict
the latter will prevail over the former. As the general provision cannot
overrule the effect of the special provision.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are
in conflict, the rule of Harmonious Construction (every statute should be read
as a whole and interpretations consistent of all the provisions of the statute
should be adopted when in conflict of any statute or any part of the statute)
should be applied.

Privileges and the law courts

Article 143 confers the power on the President to consult the Supreme Court
if at any time it appears to the President that a question of fact or a law
arises or may arise in future. Also, such questions must be of public
importance or it must be advantageous to seek the opinion of the Supreme
Court. And after such hearing, if the court thinks it relevant, it may give its
opinion to the President.

The house of parliament though have a lot of powers, privileges and

immunities but despite all these advantages it cannot act or perform similar
to a Court. The Courts are the one who interprets the laws or acts passed by
the parliament. For instance, if any offence is committed even in the house of
parliament the jurisdiction vests with the ordinary Courts.

Case Law

In Keshava Singh v. Speaker, Legislative Assembly

The facts of the case – Keshava Singh, who was a non-legislative member of
the assembly, printed and published a pamphlet. Because of the printing and
publishing of the pamphlet, the Speaker of the U.P. Legislative assembly
criticized him for contempt and breach of the privilege of one of the
members. On the same day, Mr Keshava being present in the house
committed another breach by his conduct.

As a result of his conduct in the house, the speaker directed him to be

imprisoned, issued a warrant for the same and ordered his detention in jail
for 7 days.
Under Article 226, a writ of Habeas Corpus was applied in his petition. The
petition claimed that the detention in jail is illegal and is done with malafide
intentions. The petition also stated that he was not given any chance to
explain or defend himself. The petition was heard by the 2 judges who gave
them interim bail.

As a result of the decision in Keshava’s case, the assembly passed a new

resolution.

In this resolution, it was laid that the 2 judges entertained the writ filed by
the petitioner and his lawyer. In its resolution, the assembly issued a
contempt notice to present the two judges and the lawyer before the house
and explain the reasons for their conduct. It also ordered that Keshava should
be taken into custody. Under this, they moved petitions under 226 and filed a
writ of mandamus before the Allahabad High Court to set aside the resolution
passed by the assembly.

It was held by the majority of the Supreme Court that the conduct of the 2
judges does not amount to contempt.

The Court further explained that if in the matters of privileges stated under
Article 194(3) then the house will be considered as the sole and exclusive
judge provided that it should be stated in that. But if any such privilege is not
mentioned in the article then it’s the Court who has to decide upon it.

Conclusion
After analysing Article 105 and 194, one can clearly infer their absoluteness.
These special provisions are granted to the Parliament for its effective
functioning. These articles also impose duties upon them to make effective
laws which do not harm the rights of others. The parliament or the Legislative
Assembly though can exercise their powers, privileges and immunities,
cannot act as an ordinary Court of justice.