Part V: The Union

Powers, Privileges and Immunities of Parliament and its Members

Article 105: Powers, Privileges, etc., of the Houses of Parliament and of the members and committees thereof

--- Original Article ---

(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 of Parliament.

Amendment: Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 21. This amendment was omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 45 (w.e.f. 20-6-1979).

Explanations

Article 105 of the Constitution of India outlines the powers, privileges, and immunities of the Houses of Parliament and their members and committees. This provision is essential for ensuring that Parliament functions without undue interference from external authorities, preserving the independence and dignity of the legislative process. The article not only empowers members to speak freely but also provides them legal immunity for their actions within Parliament, reflecting the democratic principle of free debate.

Clause-by-Clause Explanation

Clause (1): Freedom of Speech in Parliament

Clause (1) provides that, subject to the Constitution and the rules and procedures of Parliament, members of both Houses have complete freedom of speech during parliamentary proceedings. This ensures that members can express their views, ideas, and criticisms without fear of legal consequences, thus facilitating open and honest debate.

Historical Significance

The right to freedom of speech in Parliament is rooted in the British parliamentary system, emphasizing the role of free debate in the democratic process. This freedom allows for transparency and ensures that members of Parliament can fulfill their duties effectively without external pressures.

Real-Life Example

During the 2012 debates on the Lokpal Bill, several members voiced strong opinions, including harsh criticisms of the government. These members were protected under the freedom of speech guaranteed by Article 105, ensuring that they were not held legally accountable for their comments.

Clause (2): Immunity from Legal Proceedings

Clause (2) establishes that no member of Parliament can be held liable in any court for anything they say or any vote they cast in Parliament or its committees. Furthermore, publications under the authority of either House, such as reports or papers, are similarly protected. This immunity is vital for maintaining the independence of Parliament, allowing members to speak freely without fear of legal action.

Historical Significance

This provision draws from the British parliamentary system, where members enjoy similar protections to ensure that parliamentary proceedings are conducted without external interference. In India, this immunity is crucial for the functioning of a robust democracy, ensuring members can represent their constituents fearlessly.

Real-Life Example

In 2010, during the debate on the Women's Reservation Bill, a member of Parliament made controversial statements that attracted media attention. Despite the public outcry, the member was shielded from legal action due to the immunity provided by Article 105.

Clause (3): Powers, Privileges, and Immunities

Clause (3) provides that the powers, privileges, and immunities of each House and their members and committees shall be defined by Parliament through law. Until such laws are enacted, the existing powers and privileges from before the Forty-fourth Amendment Act, 1978, will continue to apply.

Amendment and Historical Context

The powers and privileges of Parliament were initially to be defined by the Constitution (Forty-second Amendment) Act, 1976. However, this was reversed by the Forty-fourth Amendment in 1978 to prevent the excessive centralization of power in the executive. The amendment restored Parliament’s authority to define its own powers and privileges through laws passed by the legislature.

Clause (4): Application to Non-Members

Clause (4) extends the provisions of clauses (1), (2), and (3) to persons who, by virtue of the Constitution, have the right to speak in or take part in parliamentary proceedings, such as the Attorney-General of India. This ensures that even those who are not members of Parliament but participate in its proceedings enjoy the same privileges.

Real-Life Example

The Attorney-General, while advising Parliament on legal matters, is protected under this clause from legal proceedings for their opinions expressed in Parliament. This enables open and transparent legal guidance during legislative debates.

Legislative History

Article 105 underwent significant deliberation and modification during the constitutional drafting process and subsequent amendments. Initially drafted and deliberated as Article 85 of the Draft Constitution on May 19, 1949, and October 16, 1949, it was eventually incorporated into the Constitution of India.

The Constitution (Forty-second Amendment) Act, 1976, included a substitution under section 21. However, this amendment was later omitted by the Constitution (Forty-fourth Amendment) Act, 1978, with the omission taking effect from June 20, 1979.

Debates and Amendments

In the debates surrounding Article 85, Shri H. V. Kamath proposed an amendment to clause (3), suggesting that the privileges of Indian Members of Parliament should be based on those of the Dominion Legislature of India, rather than the UK House of Commons.

• Shri Jaspat Roy Kapoor moved an amendment to clause (4), aiming to extend legal immunity to non-members of Parliament, such as experts and witnesses, for statements made before parliamentary committees.
• Prof. K. T. Shah introduced a new clause (5), proposing that each House of Parliament should be the sole judge of its privileges and breaches thereof.

After extensive discussions, only Kapoor's amendment was accepted, providing immunity to non-members in parliamentary committees.