Parliamentary Privileges – Article 361A, Article 105

What is a parliamentary privilege?

Parliamentary privileges, i.e. exceptional right or advantage, are granted to the members of legislatures worldwide. Thus, in most democratic countries, the legislatures and their members enjoy certain privileges to function effectively. Privilege though part of the law of the land, is, to a certain extent an exemption from the ordinary law. It would not be wrong to say that privilege is to Parliament what prerogative is to the Crown. Just as the Crown can exercise prerogatives without help or hindrance from Parliament or the judges, the House of the Parliament can exercise privileges without help or hindrance from the Judges.

India is one of those rare examples in history where representative institutions were made available by a foreign government by slow degrees and evolved gradually. In the Indian context, the privileges and immunities enjoyed by Lok Sabha and Rajya Sabha are called parliamentary privileges.

The government of India, based largely on the Westminster model, grants limited immunity from legal proceedings to members of Parliament and State Legislature under Articles 105 and 194 respectively, of the Indian Constitution. Article 105(2) reads as follows: No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

Origin 

• The origin of Parliamentary privileges in India can be traced as far back as 1833 when a fourth member was added to the governor-general’s council following the Charter Act of 1833. A new type of legislative machinery came into existence. This laid the foundation of an institution that ultimately grew into a full-fledged law-making body by process of evolution.

• The official aversion to the legislature’s privileges was diluted after the indirect election to the legislature was provided by the Indian Councils Act, 1909.

• The Government of India Act, 1935, provided that there should be freedom of speech in the legislature.

• Today, some of the privileges of Parliament, and its members and committees, are specified in the Constitution, and there are certain statutes and the rules of procedure of the House; others continue to be based on the precedents of the House of Commons.
• The main articles of India’s Constitution dealing with the privileges of Parliament are 105 and 122, and the corresponding articles for the states are 194 and 212. Article 105 (1) of India’s Constitution provides that, subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament, there would be freedom of speech in the Parliament.

Use of a parliamentary privilege

The exemptions, rights or immunities provided to the members of each house of the parliament and the parliament committees secure the independence and effectiveness of the actions taken by them.

• The parliamentary privileges help maintain the dignity, authority and honour of the members of parliament.
• The parliamentary privileges help secure the members of the houses from any obstruction in their discharge of actions.

Types of Parliamentary Privileges

There are two categories of Parliament privileges in India, the specified and enumerated, and the recognized but unremunerated.

The first category includes:

• Freedom of speech in each House of Parliament
• Immunity from proceedings in any courts regarding anything said or voted given by a member in parliament or any committee thereof.
• Immunity from liability regarding the publication by or under the authority of either House of Parliament, of any report, paper, votes or proceeding of either House.

In the second category, fall all those privileges which were enjoyed by the House of Commons of the Parliament of the United Kingdom, and its members and committees, at the commencement of the Constitution of India and, would continue to be in force unless they are modified and defined by Parliament by law.

The Indian parliamentary privileges are categorized into two:

1. Collective Privileges – Those privileges which are enjoyed by the Indian Parliament as a whole.
2. Individual Privileges – Those privileges which are secured to the members of the parliament on an individual level.

Difference between Collective and Individual Privileges

Individual Privileges	Collective Privileges
Members cannot be arrested during the session of Parliament 40 days before the beginning and 40 days after the end of a session.	Right to publish its reports, debates, and proceedings.
Members have freedom of speech in Parliament, and no member is liable to any proceedings in any court	Right to exclude strangers from its proceedings
They are exempted from jury service when Parliament is in session.	Right to make rules to regulate its own procedure
	Right to punish members as well as outsiders for breach of its privileges. The courts prohibited inquiring into the proceedings of a House.
	No person can be arrested without the permission of the presiding officer.

Sources: The five sources of the privileges are:

1. Constitutional provisions
2. Various laws made by Parliament
3. Rules of both the Houses
4. Parliamentary conventions
5. Judicial interpretations

Article 361A: Protection of publication of proceedings of Parliament and State Legislatures 

(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:

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.

(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.

This provision was not part of the Constitution of India, 1950. It was inserted by the Constitution (Forty Fourth Amendment) Act, 1978.

Article 105 of the Constitution

• • It deals with “powers, privileges, etc of the Houses of Parliament and of the members and committees thereof.

• It has four clauses:

• 1. Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
  2. No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
  3. In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
  4. The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
• This immunity extends to certain non-members as well, such as the Attorney General for India or a Minister who may not be a member but speaks in the House.

Significantly, Parliamentary privileges are an important aspect of the legislative process, as they help to ensure the independence and integrity of the legislative body. These privileges are intended to protect the ability of lawmakers to speak and act freely. By providing immunity from arrest and legal process, parliamentary privileges allow members of parliament to carry out their duties and responsibilities without fear of intimidation or interference. 

In addition, parliamentary privileges such as the privilege of confidentiality and the privilege of access allow members of parliament to obtain and share information that may be crucial to their decision-making processes. Overall, parliamentary privileges are an important part of the checks and balances that help to safeguard the independence and integrity of democratic institutions and ensure that they can function effectively.

References

Various online sources such as Ignou notes, Vajiram and Ravi IAS etc.