JAMIA MILLIA ISLAMIA
New Delhi- 110025
FACULTY OF LAW
CONSTITUTION LAW-I ASSIGNMENT
TOPIC:
PARLIAMENTARY PRIVILEGES: A SHEILD OR A SWORD
NAME: WALIA NAZIR
STUDENT ID : 202303363
COURSE: BA.L.L.B.(Hons) REGULAR
SEMESTER: 3rd (2nd Year)
ROLL NO: 66
SUBMITTED TO-
(PROF. ASAD MALIK)
Table of Contents
Topic
Acknowledgement
Introduction
Parliamentary Privileges
Historical Evolution of Parliamentary Privileges
Constitutional Provisions of Parliamentary Privileges
Parliamentary Privileges as Shield
Parliamentary Privileges not a Sword
Other Privileges
Cases on Parliamentary Privileges
Conclusion
References
ACKNOWLEDGMENT
I would like to express my sincere gratitude to my respected teacher, PROFESSOR ASAD MALIK,
for giving me the invaluable opportunity to undertake this project on the topic PARLIAMENTARY
PRIVILEGES: A SHEILD OR A SWORD, as part of the CONSTITUTIONAL LAW-I. His
encouragement and guidance throughout this project have been instrumental in helping me explore
this subject in depth. This project not only provided me with the chance to delve into the
complexities of Constitutional Law but also allowed me to refine my research skills and gain
insights into legal principles and their applications.
I am deeply indebted to the numerous authors, jurists, and legal scholars whose works and insights
have significantly enriched my understanding and helped shape this assignment. Their scholarly
contributions have been a valuable resource for my research, providing clarity on intricate concepts
and enhancing the quality of my work. I would also like to extend my gratitude to everyone who
supported me throughout this project, directly or indirectly, making this learning experience truly
fulfilling and enlightening.
INTRODUCTION
Parliamentary privileges in India represent a unique set of rights and immunities granted to
members of Parliament and state legislatures, intended to ensure they can perform their duties
independently and effectively. Rooted in the tradition of the British House of Commons, these
privileges in India are safeguarded by Articles 105 and 194 of the Constitution, establishing the
right to free speech, immunity from judicial proceedings, and certain protections for legislative
bodies. However, as with any special power, parliamentary privileges raise questions about the
balance between legislative autonomy and accountability. This assignment explores whether
parliamentary privileges serve as a “shield” to protect legislative independence or a “sword” that
could potentially infringe upon fundamental rights, press freedom, and judicial oversight.
PARLIAMENTARY PRIVILEGES
The term parliamentary privileges is used in Constitutional writings to denote both these types of
rights and immunities. The term 'privilege' is derived from "privilegium" which means a law
specially passed in favour of or against a particular person.1 Sir Thomas Erskine May has defined
the expression Parliamentary privileges as follows: The sum of the peculiar rights enjoyed by each
house collectively is a constituent part of the High Court of Parliament, and by members of each
house of parliament individually, without which they cannot discharge their functions, and which
exceed those possessed by other bodies or individuals.2
Members of legislatures around the world are bestowed with parliamentary privileges, which are
extraordinary rights or benefits. As a result, legislatures and their members have specific privileges
that enable them to operate efficiently in the majority of democracies. Despite being a component of
the law, privilege is somewhat an exception to the general rule of law. To suggest that privilege is to
Parliament what prerogative is to the Crown would not be incorrect. The House of Parliament can
exercise privileges without the assistance or interference of the judges, just as the Crown can
exercise prerogatives without the support or interference of Parliament or the judges.
1Parliamentary Privileges And The Fundamental Right To Free Speech: A Conundrum Of The Conflicting Entitlements
available at: [Link]
conundrum-of-the-conflicting-entitlements-162749 (last visited on October 28, 2024).
2Parliamentary Privileges available at: [Link]
[Link]#google_vignette (last visited on October 30, 2024).
One of the few instances in history when representative institutions were progressively established
by a foreign administration is India. In the Indian context, the privileges and immunities enjoyed by
Lok Sabha and Rajya Sabha are called parliamentary privileges.
HISTORICAL EVOLUTION OF PARLIAMENTARY PRIVILEGES
The privilege of the freedom of speech in the House of Commons is very well established and it
owes this characteristic to a case famously known as the Strode’s case which happened as early as
1512. In this case, Richard Strode, a Devon, England, member of parliament, had proposed a bill to
alleviate the difficult working conditions faced by Dartmoor tin miners. But before Strode could get
to Westminster to propose his bill, the local Stannary Court ordered him to be prosecuted and
imprisoned. After three weeks, Strode was freed, and as a result of his incarceration, the Privilege of
Parliament Act 1512—famously known as Strode's Act—was approved.
In 1629, in the case of Sir John Eliot it was held that the Strode’s Act was a private act and applied
to Strode only and not to any other member of parliament. However, in 1667, the decision was
reversed and it was held by both the House of Commons and the House of Lords that the Strode’s
Act was a general law and that it would be applicable to any other member of parliament. This law
was subsequently codified as Article 9 of the Bill of Rights 1689. It was enacted by the Bill of
Rights that “the freedom of speech or debates in Parliament ought not to be impeached or
questioned in any court or place out of Parliament.” Hence, no civil or criminal action lies against a
member of parliament for defamation or the like in respect of things said in the Parliament or its
committees.3
CONSTITUTIONAL PROVISION OF PARLIAMENTARY
PRIVILEGES
The constitutional provision regarding privileges of the State Legislature and Parliament are
identical. Articles 105 and 194 provides for privileges of the Legislature in India. While Article 105
deals with Parliament Article 194 deals with State Legislature.4
Article 105. Powers, privileges, etc., of the Houses of Parliament and of the members and
committees thereof.—
3Kang Lama, Richin Jacob & Kanishka Shankar, “Analysing Article 105 of the Constitution of India” 7 Journal on
Contemporary Issues of Law 13 (2021).
4 Dr. J.N. Pandey Constitutional Law of India 634 (Central Law Agency, 54th edn., 2017).
(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 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.
(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.5
In order to preserve the democratic ideals of the Indian Constitution, Article 105 is essential. It
guarantees the efficient operation of the legislative body by giving the Houses of Parliament and
their members certain rights and privileges. Members can express their thoughts and speak for their
constituents because to Article 105's guarantee of freedom of speech and expression. Because it
promotes candid discussions and debates on issues of national significance, this freedom is
necessary for a robust democracy. The independence and integrity of Parliamentarians are
safeguarded by Article 105's immunity from prosecution and freedom from detention. It guarantees
that they can carry out their responsibilities without worrying about reprisals or outside
intervention. The right to publish parliamentary proceedings provided by Article 105 promotes
transparency and accountability in the legislative process. It allows the public to stay informed
about the decisions and actions taken by their elected representatives.6
Article 122. Courts not to inquire into proceedings of Parliament.—
(1) The validity of any proceedings in the Parliament shall not be called in question on the ground
of any alleged irregularity of procedure.
5 The Constitution of India, art. 105.
6 Article
105 of the Indian Constitution: Powers, privileges, etc., of the Houses of Parliament and of the members and
committees thereof available at: [Link] (last visited on October 24, 2024).
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution
for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be
subject to the jurisdiction of any court in respect of the exercise by him of those powers.7
Courts are prohibited from questioning the validity of parliamentary proceedings on grounds of
procedural irregularity. It ensures that the internal proceedings of Parliament are immune from
judicial scrutiny, preserving legislative autonomy.8 It shields officials and parliamentarians from
judicial interference with regard to their responsibilities for upholding order, conducting business,
and regulating process. It maintains the idea that the legislature alone has authority over its own
affairs.
Article 194. Powers, privileges, etc., of the Houses of Legislatures and of the members and
committees there of.—
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the
procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof, and
no person shall be so liable in respect of the publication by or under the authority of a House of
such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State,
and of the members and the committees of a House of such Legislature, shall be such as may from
time to time be defined by the Legislature 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 26 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
the Legislature of a State or any committee thereof as they apply in relation to members of that
Legislature.9
7 The Constitution of India, art. 122.
8 Article122 of the Indian Constitution: UPSC 2025 Notes available at: [Link]
indian-constitution-upsc-2025-notes/?amp=1 (last visited on October 30, 2024).
9 The Constitution of India, art. 194.
Article 212. Courts not to inquire into proceedings of Legislature.—
(1) The validity of any proceedings in the Legislature of a State shall not be called in question on
the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order, in the
Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those
powers.10
PARLIAMENTARY PRIVILEGES AS A SHEILD
Parliamentary privileges in India are crucial for the effective functioning of Parliament and state
legislatures, providing members with protections needed to perform their duties independently.
These privileges are intended for the benefit of the legislative body as a whole, not for individual
members' personal gain. The Indian Constitution grants these privileges to preserve legislative
integrity and ensure that lawmakers can work without interference or fear of retribution. The
Constitution also defines the scope of authority for the executive, legislature, and judiciary, while
Part III (the Bill of Rights) protects individual freedoms. This framework aims to prevent one
branch from encroaching on another's jurisdiction. However, despite these safeguards, conflicts
have arisen between parliamentary privileges and fundamental rights, between the Parliament and
the press, and between Parliament and the judiciary. Members of Parliament have been given
somewhat wider personal liberty, and freedom of speech than an ordinary citizen enjoys for a reason
that a house cannot function effectively without the unimpeded and uninterrupted use of their
services.11
1. Fundamental Rights vs. Parliamentary Privileges: Conflicts emerge when parliamentary
privileges appear to infringe on individual rights like freedom of speech (Article 19). For example,
if Parliament acts against someone for publishing critical information about proceedings, questions
arise about the balance between legislative privilege and free speech.
2. Press vs. Parliament: The press has a role in reporting on government actions and holding
officials accountable, which sometimes clashes with parliamentary privileges. Journalists who
10 The Constitution of India, art. 212.
11 MP Jain Indian Constitutional Law 89 (Lexis Nexis, 8th edn., 2018).
report on parliamentary matters may face consequences, raising concerns about freedom of the
press versus the need to protect the dignity and integrity of the legislature.
3. Parliament vs. Judiciary: The judiciary’s role in interpreting the Constitution sometimes brings
it into conflict with Parliament. When courts review actions of Parliament under claims of privilege,
Parliament may view this as interference. For instance, the *Keshav Singh case* highlighted
tensions when the judiciary questioned legislative privilege, eventually setting limits to ensure a
balance between legislative independence and judicial oversight.
Despite constitutional attempts to prevent these conflicts, Parliament and the judiciary occasionally
clash over privilege boundaries. The objective of parliamentary privileges is to protect legislative
independence, but their use needs to be balanced against democratic principles and individual
rights.
PARLIAMENTARY PRIVILEGES NOT A SWORD
Privilege, in a legal sense, is a special right or immunity that stands in contrast to a duty. Juridically,
privileges allow individuals or institutions to perform certain actions that would typically be
considered unlawful, yet are deemed acceptable in specific circumstances. As Paton defines,
privilege encompasses acts that are, on the surface, unlawful but are permitted under particular
conditions. Similarly, A. Kocourek interprets privilege as including immunity, power, or exceptions
to legality granted in specific scenarios.
In the Indian Constitution, Articles 105 and 194 outline the "powers, privileges, and immunities" of
Parliament and the state legislatures. These articles aim to protect the independence and
functionality of legislative bodies by granting members certain rights and protections, which are
essential for the free and effective operation of legislative business. The foundation for India's
parliamentary privileges is drawn from the British House of Commons, where such protections
were historically necessary to shield the Commons from overreach by the Crown. British legislators
fiercely defended their privileges, having experienced significant conflicts with the Crown’s
authority. India has adopted a similar framework, but with key differences. Unlike the UK, India has
a written Constitution, which is supreme and federal in nature, outlining checks and balances among
the three branches of government: the executive, legislature, and judiciary.12
A critical element of India’s system is the power of judicial review, vested in the higher judiciary.
Judicial review serves as a check on parliamentary power, ensuring that legislative actions align
12 KC Joshi “Parliamentary Privileges a Sword or Shield” 42 The Indian Law Institute 429 (2000).
with constitutional principles. This power of review forms a core feature of India’s constitutional
structure, emphasising that while the Indian Parliament holds substantial authority, it remains
subordinate to the Constitution. In contrast, the UK Parliament operates with sovereign power,
unconstrained by any supreme, written document. The Indian Constitution also includes an
entrenched Bill of Rights (Part III), which protects fundamental rights and serves as a safeguard
against possible misuse of legislative privileges. These constitutional protections reinforce the
balance between privilege and accountability, ensuring that privileges support legislative
independence without infringing on citizens’ rights or judicial oversight.
OTHER PRIVILEGES
1. Freedom from Arrest.— This privilege is well established in England. A member of
Parliament cannot be arrested or imprisoned on a civil proceeding within a period of 40 days
before and 40 days after the session of Parliament. If a member is arrested within this period he
should be released so that he might be free to attend Parliament.13 Members of the House will
be arrested just like any other individual if they commit a crime. It has also been decided that
the privilege does not apply to detention under the Preventive Detention Act or to arrest or
incarceration on a criminal charge in India. This immunity is, however, confined to arrest in
civil cases and does not extend to arrest or criminal case.14
2. Right to exclude strangers from its proceedings and hold secret sessions.— The English
House of Parliament has exercised its prerogative to hold secret meetings in order to examine
some significant issues. In India, the House of Parliament has comparable authority. However,
because people need to be informed about what their representatives are doing in the legislature,
secret sessions are now only held on special occasions.
3. Right to prohibit to publication of its Reports and Proceedings.— In England, the house of
commons has the right to prohibit the publication of its report, debates or other proceedings. In
the famous searchlight case, the question was whether the publication b a newspaper of those
parts of the speech of a member in the house which were ordered to be expunged by the
speaker, constituted breach of privilege of the house. The Supreme Court held that publishing a
speech that had been erased violated the house's privilege. According to the legislation, if a
13 Dr. J.N. Pandey Constitutional Law of India 636 (Central Law Agency, 54th edn., 2017).
14Dr. Durga Das Basu Introduction to the Constitution of India 219 (Lexis Nexis Butterworths Wadhwa Nagpur, 20th
edn., 2012).
speaker expunges a member's speech, it may have the effect of not having been said at all. The
Indian Parliament has the authority to forbid proceedings from being published.15
4. Right to regulate Internal Proceedings.— In in conjunction with calling for a session of the
Legislative Assembly, the House has the authority to control its own internal operations.
However, it lacks the authority to command the assembly's speaker and halt the proceedings.
Article 122 of the Indian Constitution states that a court of law cannot examine the legitimacy
of Parliamentary proceedings based on a purported procedural irregularity.
5. Right to punish Members or Outsiders for Contempt.— The House of Commons has power
to punish a person whether member or stranger for its 'contempt' or for 'breach of privilege’'.
This power is truly described as the, 'Keystone of Parliamentary Privilege', for this power is
used by the House to enforce its privileges. The House is the sole judge of the question whether
any of its privileges has been infringed and the Court cannot question the decision of the House
on the point.16 Each chamber of Parliament has been granted this privilege. The houses have the
authority to penalise anyone who violates any of the privileges granted to them or commits
contempt, whether they are members or not. The houses have the authority to punish anyone
who has disregarded them in the past or in the present.
CASES ON PARLIAMENTARY PRIVILEGES
Pandit MSM Sharma v. Shri ShriKishan Sinha & Others17
In this case, Supreme Court held the privileges enjoyed by the member of Parliament are not subject
to article 19 A. in conflict between article 19A and article 194, the later will prevail.
Tej Kiran Jain v. N. Sanjeeva Reddy18
The Supreme Court dismissed an appeal seeking damages of Rs. 26,000 for alleged defamatory
statements made about a Shankaracharya during a parliamentary debate. The court held that as per
15 Dr. J.N. Pandey Constitutional Law of India 637 (Central Law Agency, 54th edn., 2017).
16 Dr. J.N. Pandey Constitutional Law of India 637 (Central Law Agency, 54th edn., 2017).
17 AIR 1959 SC 395.
18 AIR 1971 DEL 86.
Article 105(2) of the Indian Constitution, members of parliament cannot be held liable for anything
said during proceedings.19
PV Narsimarao v. State (CBI/SPE)20
The court held that the scope of protection of immunity available to the member of Parliament is
quite wide and is not confined only against judicial proceedings and also available to them against
civil and criminal proceedings for anything said or any vote given in the house of Parliament. in this
case, the court held that MPs who has taken bribe and voted in Parliament against no confidence
motion brought against Narsimarao at entitled to be protected under article 105 and are not
answerable in any court of law. But MPs who has taken the bribe, but not voted in no confidence,
motion are not entitled to the protection under article 105. An action can be initiated against them
under the proper law.
Alagpuram R. Mohanraj v. State of Tamil Nadu Legislative Assembly21
The Supreme Court, headed by Justice Jasti Chelameswar, examined the suspension of six MLAs
by the Tamil Nadu Legislative Assembly. The suspension was based on the Privileges Committee's
findings that the MLAs' unruly conduct amounted to a breach of the assembly's privileges. The
petitioners contended that their suspension violated fundamental rights guaranteed under Articles
19(1)(a), 19(1)(g), 14, and 21 of the Constitution. The Court meticulously analysed whether the
suspension infringed upon these rights and whether due process was followed in the legislative
procedure. Ultimately, the Supreme Court set aside the suspension, emphasising the necessity of
adhering to the principles of natural justice in legislative actions affecting individual rights.22
Kalpana Mehta v. UOI23
Free speech within Parliament is crucial for democratic governance. It is through the fearless
expression of their views that parliamentary pursue their commitments to those who elect them. The
power of speech extract from democratic accountability from elected government. The free flow of
19Tej Kiran Jain v. N Sanjeeva Reddy available at: [Link]
Sanjeeva-Reddy#:~:text=Report-,The Supreme Court dismissed an appeal seeking damages of Rs, for anything said
during proceedings (last visited on November 1, 2024).
20 AIR 1998 SCC 4 626.
21 AIR 2016 SC 867.
22Enforcement of Natural Justice in Legislative Privilege Proceedings: Alagaapuram R. Mohanraj v. T.N. Legislative
Assembly available at: [Link]
privilege-proceedings:-alagaapuram-r.-mohanraj-v.-t.n.-legislative-assembly/view (last visited on October 28, 2024).
23 AIR 2017 SCC ONLINE SC 390.
dialogue ensures that in training legislation and overseeing government policies, government,
reflect the diverse view of the electorate, which an elected institution represents.
CONCLUSION
In India, parliamentary privileges play a crucial role in maintaining the independence and effective
functioning of the legislative branch. These privileges act as a shield, protecting members of
Parliament and state legislatures from interference, allowing them to perform their duties with
freedom and integrity. However, they also bring challenges, especially when these privileges seem
to conflict with fundamental rights or the role of the judiciary in upholding the Constitution. While
parliamentary privileges are essential, they must be exercised with respect for democratic values
and individual freedoms to avoid misuse. This balance ensures that parliamentary privileges remain
protective tools within India’s democratic framework, fostering transparency and accountability.
REFERENCES
BOOKS:
1. Dr. J.N. Pandey Constitutional Law of India (Central Law Agency, 54th edn., 2017).
2. MP Jain Indian Constitutional Law (Lexis Nexis, 8th edn., 2018).
3. Dr. Durga Das Basu Introduction to the Constitution of India (Lexis Nexis Butterworths
Wadhwa Nagpur, 20th edn., 2012).
JOURNALS:
1. Kang Lama, Richin Jacob & Kanishka Shankar, “Analysing Article 105 of the Constitution of
India” 7 Journal on Contemporary Issues of Law 13 (2021).
2. KC Joshi “Parliamentary Privileges a Sword or Shield” 42 The Indian Law Institute 429 (2000).
WEBSITES:
1. Parliamentary Privileges And The Fundamental Right To Free Speech: A Conundrum Of The
Conflicting Entitlements available at: (last visited on October 28, 2024).
2. Parliamentary Privileges available at: [Link]
[Link]#google_vignette (last visited on October 30, 2024).
3. Article 105 of the Indian Constitution: Powers, privileges, etc., of t[Link]
columns/parliamentary-privileges-and-the-fundamental-right-to-free-speech-a-conundrum-of-
the-conflicting-entitlements-162749he Houses of Parliament and of the members and
committees thereof available at: [Link] (last visited on
October 24, 2024).
4. Article 122 of the Indian Constitution: UPSC 2025 Notes available at: https://
[Link]/article-122-of-the-indian-constitution-upsc-2025-notes/?amp=1 (last
visited on October 30, 2024).
5. Tej Kiran Jain v. N Sanjeeva Reddy available at: [Link]
Tej-Kiran-Jain-v-N-Sanjeeva-Reddy#:~:text=Report-,The Supreme Court dismissed an appeal
seeking damages of Rs, for anything said during proceedings (last visited on November 1,
2024).
6. Enforcement of Natural Justice in Legislative Privilege Proceedings: Alagaapuram R. Mohanraj
v. T.N. Legislative Assembly available at: [Link]
enforcement-of-natural-justice-in-legislative-privilege-proceedings:-alagaapuram-r.-mohanraj-
v.-t.n.-legislative-assembly/view (last visited on October 28, 2024).