Article 105 of Indian Constitution – Notes for UPSC

Article 105 of Indian Constitution: Powers, privileges, etc., of the Houses of Parliament and of the members and committees

Article 105 of Indian constitution delineates the power, privileges, and immunities of the Houses of Parliament and their members. It is a cornerstone for ensuring the independence and efficacy of the legislative process in India. This provision safeguards members speech and actions in Parliament, allowing them to perform their duties without fear of litigation for anything said or any vote cast within the house. By freedom of parliamentary proceedings, facilitating robust democratic governance.

Original Text of Article 105 of Indian Constitution:

(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 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

Explanation of Article 105 of Indian Constitution: 

Parliamentary privileges are special rights and immunities provided to the Parliament and its members to maintain their honour, dignity and authority and to ensure they fulfil their parliamentary responsibilities without hindrance and fear of repercussions.

• Articles 105 and 122 provide parliamentary privileges for Lok Sabha and Rajya Sabha, respectively. This feature was taken from the British Constitution.
• The Parliamentary privileges are also extended to non-members who are allowed to participate and speak in the proceedings of a chamber of Parliament and its committees. These persons include the Attorney General of India and Union Ministers.

Source of the Parliamentary Privileges

The Parliament has yet not codified the parliamentary provisions. The existing privileges are based on the following sources:

• Constitution: The original Constitution only mentioned two privileges: the freedom of speech in Parliament and the right of publication of its proceedings. For other privileges, it provided that they would be equivalent to the British parliamentary privileges [Article 105(1)].

The 44^th Constitutional Amendment in 1978 dropped the direct reference to British Parliament, but the privileges remained the same.

• Statutory Provisions (Code of Civil Procedure, 1908, provides for freedom from arrest and detention of MPs and MLAs under civil process)
• Rules of procedures of both the houses;
• Parliamentary conventions and precedents;
• Judicial interpretations.

Types of Parliamentary Privileges

The privileges are of two types:

1. Individual Privileges: These are enjoyed by the MPs individually.
2. Collective Privileges: These privileges are enjoyed collectively by both houses of the Parliament.

1. Individual Privileges

1. Freedom of speech in the Parliament: the members are immune from court proceedings for their acts in the Parliament.
2. Freedom from arrest and detention of MPs under civil process during the ongoing meeting of the House and committees, 40 days prior to it, and 40 days after its conclusion.
3. Without permission from the House, no members or officers of the House can be compelled to provide evidence or produce documents in court relating to the House’s proceedings.
4. Without the permission of the House and the member itself, no members or officers of the House can be compelled to attend as witnesses before the other House or a House of a State Legislature or a committee.

2. Collective Privileges

• The Parliament has the right to publish its reports, debates and other proceedings of the House. It also has the right to prohibit others from publishing the same. However, the 44^th Constitutional Amendment Act restored the right of the press to publish true reports of public parliamentary proceedings (not secret meetings) without prior permission.
• The Parliament can exclude outsiders from proceedings of its meetings and can conduct secret sessions.
• The presiding officer has a right to receive immediate information on the arrest, detention, conviction, imprisonment and release of a member on a criminal charge or for a criminal offence.
• The Parliament can make rules for regulating its procedures, conduct of business and adjudication of such matters.
• No court can enquire about the proceedings of the Parliament.
• Penal Powers of the Parliament:

1. 1. It can suspend or expel the members for violating privileges.
   2. It can reprimand and even punish outsiders for breach of privileges or contempt of Parliament.

Breach of Privilege and Contempt of Parliament

Even though both the terms are used interchangeably, there are some differences between them. According to constitutional expert Subhash Kashyap, “there may be a contempt of Parliament without specifically committing a breach of privilege.” Contempt of Parliament has broader implications. For instance, disobedience to a house order may not constitute a violation of privilege but may result in sanctions for contempt of the Parliament.

Contempt of Court

Any act or omission that obstructs or hinders either House of Parliament in the performance of its functions, or that obstructs or hinders any member or officer of such House in the discharge of his/her duty, or which has a tendency, directly or indirectly, to produce such results can be treated as a contempt.

Breach of Privilege

When any of these rights and immunities is violated or attacked, the offence is called a breach of privilege of the House or its members and is punishable under the law of Parliament.

Privilege Motion and Privilege Committee

When an MP feels that his/her privileges have been breached, s/he can raise a privilege motion with the presiding officer, who can either form a 10-member committee for enquiry or refer the matter to the privileges committee. The Privileges Committee enquire asses such cases and gives its recommendations.

Codification of Parliamentary Privileges

Codification of parliamentary privileges is one of the most overdue reforms in the Parliamentary processes for the following reasons:

1. Privileges for a section of people are incompatible in a democracy, and undefined privileges make it even worse;
2. These privileges are enjoyed by the MPs on behalf of the people so that they can function freely and fearlessly; hence, these privileges cannot be allowed to be used against the people themselves;
3. Codification of the privileges is also important to end the necessity of referring to the privileges of the British Parliament.
4. Hence, for the independent and effective functioning of the Parliament, the privileges should be clearly defined, simplified and delimited.

Conclusion

The framework established by Article 105 of Indian Constitution ensures the effective functioning of Parliament through the provision of powers, privileges, and immunities to its members. This not only secures the independence of parliamentary proceedings but also upholds the dignity and authority of the institution. Despite  its importance, the call for codification of these privileges highlights the need for transparency and accountability, ensuring these special rights are exercised in the spirit of democracy and public interest, not as shields for misconduct.

For Further Reference:

• Read the Constitution of India.
• Read the Parliament.

Other Related Links:

Indian Constitution: All Articles and schedules	Article 1 of Indian Constitution
Article 2 of Indian Constitution	Article 3 of Indian Constitution
Article 4 of indian Constitution	Article 5 of Indian Constitution
Fundamental Rights	DPSP
Fundamental Duties	Amendments of the Indian Constitution
Article 104 of Indian Constitution	Article 106 of Indian Constitution