The Constitution expressly mentions two privileges: (a) freedom of Speech in the legislature, and (b) right of publication of its proceedings. Prior to Constitution (44th Amendment) Act, 1978, Article 105 provided that the powers, privileges and immunities of each House, until they were defined by the Parliament shall be those of the House of Commons in England.
But after the above Amendment, Article 105 now provides that in other respects the powers, privileges and immunities of each House of Parliament or State legislature, and of the members and committee of each House, shall be such as may from time to time be defined by Parliament and until so defined,shall be those of that House and of its members and Committees immediately after the coming into force of Constitution (44th Amendment) Act, 1978, thus the 44th amendment Act, completely omits any reference to the British House of Commons.
Freedom of Speech:
In England this privilege of the House of Commons is well settled. It has been given statutory recognition by Bill of Rights in 1689 which says that freedom of speech and debates in Parliament ought not to be Impeached or questioned in any court or out of Parliament.
In England, Parliamentary privilege is an essential incident to the high and multifarious functions which the legislature is called upon to perform. According to May, the distinctive mark of privilege is its ancillary character—a necessary means to the fulfillment of functions.
Privileges are enjoyed by Individual members because the House cannot perform its functions without unimpeded use of the services of its members, and by each House for the protection of its members and the vindication of its own authority and dignity. The Indian Constitution expressly guarantees this privilege in Article 105 which provides:
“There shall be freedom of speech In Parliament and 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 Article thus gives absolute immunity from court for anything said within the four walls of the House during the course of proceedings of the House or its Committees. So what is protected is the speech within the House.
Outside the House, a member of the House is as good a citizen as any other citizen and if a member repeats or publishes a defamatory speech made by him within the House, he does so on his own responsibility and risk and will be held liable for prosecution under Section 500 of the Indian Penal Code.
It may be noted that Clause (1) of Article 105 is expressly made “Subject to the provisions of this Constitution and to the rules and Standing Orders regulating the procedure of Parliament.”
One of such a constitutional restriction of freedom of speech is imposed by Article 121. Article 121 prohibits any discussion in Parliament with respect to the conduct of a judge of the Supreme Court or the High Courts in discharge of his duties, except when a motion to present an address to the President for his removal is under consideration of the House.
Right of publication of proceeding:
Article 105 (2) expressly provides that no person is to be liable to any proceedings in any court In respect of publication of any report, paper, votes or proceedings by or under the authority of the House. The protection under this Article does not extend to publication made by a private person without the authority of a House.
In Surendra vs. Nabakrishna, AIR 1958 Orissa 168, the editor of a newspaper was held guilty of committing contempt of court for publishing a statement made in the House amounting to contempt of the High Court without the authority of the House.
It was held that there were many advantages to the public, which has the deepest interest in knowing what passes in the Parliament if a true report of Parliamentary proceedings is published in a newspaper.
The Constitution (44th Amendment) Act, 1978 has incorporated a new Article 361-A which provides that no person shall be liable to any civil or criminal proceedings In any court in respect of any publication in a newspaper of a substantially true report of the proceedings of the either House of Parliament or State Legislature unless the publication is proved to have been made with malice.
The immunity will also apply to broadcast by means of wireless. This will, however, not apply to the publication of any report of a secret sitting of a House.
(1) Freedom from arrest:
A Member of Parliament cannot be arrested or imprisoned during a session of Parliament and for 40 days before and 40 days after the session. This privilege is available only in civil cases and not on criminal charge, or for contempt of court or from preventive detention.
In K. Anandan Nambiar vs. Chief Secretary, Govt. of Madras, AIR 1966 S.C. 657, the petitioners, members of Parliament, were detained under D.I.R., 1962. The Court held that if a Member of Parliament is detained under a valid detention order, the member can claim no special status higher than that of a citizen. If an order of detention validly prevents a member from attending a session of Parliament, no occasion would arise for the exercise by him of the right of freedom of speech.
(2) Right to exclude strangers from its proceedings and hold secret session:
This right has been used by the House of Parliament in England to go into secret sessions to discuss some important matters. The Houses of Parliament of India enjoy a similar power. However, in modern times, secret sessions are held only on exceptional occasions because voters must be kept informed of what their representatives are doing in the legislature.
(3) Right to prohibit the publication of its Reports:
In England, House of Commons has a right to prohibit the publication of its reports, debates or other proceedings. In the famous Search Light case AIR 1959 S.C. 395, the question whether the publication by a newspaper of a part of the speech of a member made in the House, ordered to be expunged by the Speaker, constitutes a breach of privilege of the House. The Supreme Court held that it constituted a breach of the privilege of the House.
(4) Right to regulate internal proceedings.
The House has an exclusive right to regulate its own internal proceedings and to adjudicate upon such matters. In England, in Bradlaugh vs. Gossett, (1824) 12 Q.B.D. 271, the plaintiff, Mr. Bradlaugh was prevented from entering the House by order of the House of Commons, the plaintiff asked the Court to declare that the order of the House was Invalid.
The Court held that the House of Commons was not subject to the control of Courts in matters relating to its own internal proceedings. The House of Commons has exclusive right of being the exclusive judge of the legality of its own proceedings. No Court of law can interfere in the right of the House to regulate Its Internal affairs.
In India, Article 122 provides that the validity of proceedings in Parliament cannot be called In question in a court of law on the ground of any alleged irregularity of procedure. In the Search Light case, the Supreme Court observed, “The validity of proceedings inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by the law, has not been strictly followed.”
(5) Right to punish members or outsiders for Contempt:
The House of the legislature 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. In Re under Article 143 AIR 1965 S.C. 745, one Mr. Keshav Singh, who was not a member of the U.P. Assembly, was held guilty of contempt of the House and was sentenced to Imprisonment for 7 days. On behalf of Keshav Singh, Mr. Solomon, his advocate, moved a habeas corpus writ petition in Allahabad High Court.
The petitioner was released by the Bench of two judges of the Allahabad High Court. The Assembly then passed a resolution that the two judges, Keshav Singh and his advocate Mr. Soloman had committed contempt of the House and directed that Keshav Singh be taken into custody and the two judges and the advocate be brought into custody before the House.
The two judges moved a writ under Article 226 in the High Court. The writ petition was heard by a full bench of 28 judges which passed an Interim order directing the stay of implementation of the Resolution of the Assembly.
The President of India referred this matter to the Supreme Court for its advisory opinion. The Supreme Court held that the Courts in India can examine the validity of detention of a person sentenced by the Assembly.
In construing the powers and privileges, other provisions of the Constitution must also be considered harmoniously. Article 226 confers wide powers on the High Courts to issue writ of habeas corpus against any authority which includes the legislature also.
The main question Involved was whether the legislature is the sole and exclusive Judge of its privileges and competent to punish a person for its contempt taking place outside the legislature. The Supreme Court by a majority of 6 to 1 held that the two judges were not guilty of committing contempt of the House by issuing an interim bail order under Article 226; the High Court has Jurisdiction to order the release of a person from illegal detention. The Supreme Court said that the courts in India can examine into the validity of detention of a person sentenced by the Assembly under a general or non-speaking warrant.