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Article 105 of Constitution


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 has argued that MPs have freedom of speech, and that he did not make any personal allegations in the House.


GS II: Polity and Governance

Dimensions of the Article:

  1. What does Article 105 say?
  2. Parliamentary Privilege: History and Restrictions
  3. Court Rulings on Parliamentary Privilege in India

What does Article 105 say?

Article 105 of the Constitution deals with “powers, privileges, etc of the Houses of Parliament and of the members and committees thereof”, and has four clauses. It reads:

  • 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.
  • No member of Parliament shall be liable to any proceedings in any court in respect of any thing 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.
  • 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.
  • 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.”

Simply put, Members of Parliament are exempted from any legal action for any statement made or act done in the course of their duties. For example, a defamation suit cannot be filed for a statement made in the House.

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. In cases where a member oversteps or exceeds the contours of admissible free speech, the Speaker or the House itself will deal with it, as opposed to the court.

Parliamentary Privilege: History and Restrictions

Origins of Parliamentary Privilege
  • Provision first brought to India by Government of India Act, 1935
  • References the powers and privileges enjoyed by the House of Commons in Britain
  • Initial draft of the Indian Constitution contained a reference to the House of Commons, but it was later dropped
  • Privileges of the House of Commons in Britain are based in common law developed over centuries through precedents
Historical Precedents
  • In the 17th-century case of ‘R vs Elliot, Holles and Valentine’, the House of Lords provided immunity to a member of the House of Commons who was arrested for seditious words spoken in a debate and for violence against the Speaker, saying that words spoken in Parliament should only be judged therein.
  • This privilege was also enshrined in the Bill of Rights 1689, by which the Parliament of England definitively established the principle of a constitutional monarchy.
  • In the 1884 case of ‘Bradlaugh v. Gosset’, then Chief Justice Lord Coleridge of the House of Lords observed that “What is said or done within the walls of Parliament cannot be inquired into in a court of law.”
Restrictions on Parliamentary Privilege
  • Article 121 of the Indian Constitution prohibits any discussion in Parliament regarding the “conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge.”

Court Rulings on Parliamentary Privilege in India

  • In the 1970 case of ‘Tej Kiran Jain v N Sanjiva Reddy’, the Supreme Court dismissed a plea for damages filed by followers of the Puri Shankaracharya against parliamentarians who made uncharitable remarks against the seer during a debate in Parliament. The Court ruled that Article 105, which grants immunity to MPs for anything said or done in Parliament, has the widest possible import and is equivalent to ‘everything’.
  • In the 1998 case of ‘P V Narasimha Rao vs. State’, the Supreme Court answered two questions on parliamentary privilege relating to charges of bribery. The Court ruled that MPs are protected by Article 105(2) from criminal proceedings related to anything said or done by them in Parliament, and that this protection enables them to participate fearlessly in parliamentary debates. The Court also ruled that an MP is not a public servant under the Prevention of Corruption Act, 1988.

-Source: Indian Express

February 2024