Immunities and Privileges of Member of Parliament | Indian Polity | UPSC Notes

Article 105 of the Indian Constitution provides for the immunities and privileges that the Members of Parliament enjoy as individuals as well as the privileges that the Parliament itself enjoys as an institution.

Important Concepts

Civil Cases: These are cases where the wrong is done against a private individual
Criminal Cases:
 These are the cases where the wrong is done against a society (e.g. murder)

For the smooth functioning of the Parliament, Article 105 provides multiple immunities to the MPs and accords many privileges to the Parliament itself as an institution. It is very important to note that Article 105 does not list out the privileges, rather it confers the power on Parliament to enact laws to codify the privileges. Until such a law is enacted, the privileges would be the same as that which existed before coming into force of Section 15 of the 44th Constitutional Amendment Act, i.e. 20th June 1979.

Immunities to the Members of Parliament as Individuals

Freedom of Speech

  • No MP can be questioned in a court of law for having said, revealed or declared anything on the floor of the Houses of Parliament or in the committee thereof or even outside Parliament but with the authorisation of the house. 
    • Reasonable Restrictions:
      • Member of Parliament has to adhere to Rules of Procedure (Article 118) of the concerned House 
      • There shall be no discussion on the conduct of a judge of a superior court except upon a motion seeking his removal (Article 121).

Freedom from Arrest

  • No MP can be arrested during a parliamentary session as well as for a period of 40 days prior to and after a session of Parliament. 
    • Reasonable Restrictions:
      • This immunity does not extend to criminal cases, preventive detention and contempt of court.

Freedom from Jury Service

No MP can be compelled to deliver jury service when Parliament is in session.

Parliamentary Privileges as an Institution

  • The Parliament has the power to exclude outsiders from its proceedings.
  • It has the right to publish or not to publish its proceedings.
  • It has the power to punish individuals for contempt of Parliament.

Fundamental Rights vs Parliamentary Privileges

Since the Parliament has the privilege to restrict publication its proceedings, it comes in conflict with somebody’s Fundamental Right to free speech under Article 19(i)(a). However, in the Searchlight Case (1958), the court held that Parliament’s right to publish or not to publish will prevail over Right to Free Speech and is a reasonable restriction.

However, in the Blitz case (1954), the court ruled that the power of the Parliament to exercise privilege of contempt can only be exercised without violation of the Fundamental Right under Article 22. Through various other judgements, it as come out that the Parliament can enjoy its privileges but without violating the fundamental rights enshrined under Articles 20, 21 and 22.

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