U-2.3 Media and the Parliamentary Privileges

Media and the Parliamentary Privileges
India has adopted a Parliamentary form of Government and as such among the
three organs the Indian Parliament is the supreme authority. It is the Parliament
which preserves the cardinal source of the power and is responsible for upholding
the rule of law. The honourable Members of Parliament as a whole are accountable
and answerable to the People of India as the real power lies with them. So, our
Constitution confers certain rights and privileges on the Members of the Parliament
and also on the members of the State Legislative Assemblies. These rights and
privileges accrue to each House of the Parliament and to the State Legislatures
collectively and to the Members individually so as to enable them to function in a
manner so that the dignity of the House is maintained. Therefore, while taking part
in the deliberations inside the Parliament or the Legislative Assemblies, the
Members enjoy the privilege of speech and certain other privileges as provided by
our Constitution. In this connection, in the day-to-day transactions of the
Parliamentary business, the Members have got an equal say in the decision making
process which has got a direct bearing on the People of India. Thus, in order to
ensure effective performance and participation of the Members in all the
deliberations in the House, they are entitled to some rights and privileges as
provided under art 105&194 of the Constitution.
Parliamentary Privileges and the Indian Constitution
Article 105 of the Indian Constitution specifically deals with powers, privileges
etc. of the Houses of Parliament and of the Members and Committees thereof. The
provision runs like this-
(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 person 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.
Thus, from the above mentioned provisions, it is clear that two privileges are
expressly mentioned, namely freedom of speech and freedom of publication of
proceedings as provided in clauses (1) and (2) respectively. Clause (3) declares that
privileges of each House shall be such as determined by Parliament from time to
time. Article 194 of the Constitution deals with the immunities and privileges of
the embers of the State Legislative Assemblies. This Article is the exact
reproduction Article the Meb Constitution. Thus, so far as immunities and
pepoduction Concerned the Members of Parliament and the Members of the State
Legislative Assemblies enjoy the same rights and immunities and powers
collectively as provided by our Constitution under Articles 105 and 194
respectively. Let us discuss each clause of both the Articles separately for a clear
understanding of the provisions.
I. Freedom of Speech
The concept of freedom of speech dates back to 17th century. In 1629 Sir John
Illiot, Holles and Valentine were charged with seditious speeches made in the
House of Commons, in Great Britain and for that act they were punished by the
Kings Bench. But the said judgment was reversed by the House of Lords in 1688
by observing that the words used inside the Parliament cannot be tried by the
courts and it is the Parliament only which can judge the words spoken inside it.
Subsequently in 1688, the Bill of Rights was enacted which declared the scope of
the Parliamentary privileges in the following words:
"That the freedom of speech and debates or proceedings in Parliament ought not to
be impeached or questioned in any court or place out of Parliament."1
During the British rule over India, the Government of India Act, 1919 and the
Government of India Act, 1935 provided for legislative privileges.
However, the Indian Constitution in clear words safeguards the freedom of speech
in Parliament. Article 105 clause (1) declares that "there shall be freedom of speech
in Parliament" while Clause (2) expressly provides that "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." Thus, no civil or
criminal action can be initiated against a Member for anything said inside the
Parliament or its Committees. From the reading of Clause (2) it is also clear that
freedom is not limited to speech only, it also extends to votes given by a member in
the Parliament.
The Supreme Court in Kalpana Mehta v. Union of India, observed that "the first
major principle which emerges from Article 105 is that it expects, recognises and
protects the freedom of speech in Parliament. Stated in a sentence, the principle
enunciates a vital norm for the existence of democracy. Parliament represents
collectively, through the representative character of its members, the voice and
aspirations of the people. Free speech within Parliament is crucial for democratic
governance. It is through the fearless expression of their views that
Parliamentarians pursue their commitment to those who elect them. The power of
speech exacts democratic accountability from elected governments. The free flow
of dialogue ensures that in framing legislation and overseeing government policies,
Parliament reflects the diverse views of the electorate which an elected institution
represents.
II. Freedom of Publication.
Article 105(2) of the Constitution expressly provides that "no person shall be liable
in respect of the publication by or under the authority of either House of
Parliament, of any report, paper, votes or proceedings."
Thus, it means that 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. The word 'proceedings' used here has been interpreted to mean
any civil, criminal or writ proceedings. The Supreme Court has the occasion to
examine the scope of Article 105(2) in Tej Kiran Jain v. N. Sanjeeva Reddy. The
apex court held that "the absolute immunity of a Member for anything said in the
Legislature extends to everything said by a Member during the course of a business
in a House of the Legislature while it was sitting and its business was being
transacted, even though what was said might not be relevant to the business before
the House." Thus, once it is proved that "the Parliament was sitting and its business
was being transacted, anything said during the course of that business was immune
from the proceedings in any court."
In P.V. Narasimha Rao's case, better known as JMM bribery case, where allegation
of bribery was labelled against certain Members of Parliament, the court held the
view that the Members of Parliament who took bribe and voted against no
confidence motion are entitled to the immunity conferred by Article 105(2) and are
not answerable in a court of law. A Member who took the bribe and did not vote is
not entitled to protection under this Article. Similarly, the Members of Parliament,
who are the bribe givers are also not entitled to any protection under Article 105(2)
as their acts have no nexus to their speech or vote in Parliament.
Other Privileges
Freedom from arrest
Right to exclude strangers
Right to prohibit the publication of proceedings
Right to regulate internal proceedings
Right to punish for contempt
Parliamentary Privileges and the Judiciary
Although our Constitution clearly demarcates the boundaries and limitations of the
three main organs of the State, the conflict between Legislature and the judiciary
often surfaced at regular intervals. Similarly, in England, in the past, there has been
acute controversy between the House of Commons and the courts over the issue of
privileges. After a long battle it seems at present the controversy has come to an
end or settled to a large extent by an agreement between the House of Commons
and the courts. But in India, the conflict has not been settled and there are many
instances of tension between the courts and the Parliament or State Legislatures
over the scope of privileges.

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Media and the Parliamentary Privileges

(2) No Member of Parliament shall be liable to any proceedings in any court in

Thus, it means that no Member of Parliament shall be liable to any proceedings in

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