Parliamentary privilege is the total of specific rights enjoyed by each House collectively and by members of each House individually, which outweigh those owned by other groups or persons and without which they could not execute their tasks.
Some privileges are based purely on Parliamentary law and custom, while others are governed by statute.
Article 105 and Article 194 grant privileges or advantages to the members of the parliament so that they can perform their duties or can function properly without any hindrances.
Types of Privileges
These “rights” can be divided into two categories: those extended to Members individually, and those extended to the House collectively. Each category can be further divided.
The rights and immunities accorded to Members individually are generally categorized under the following headings:
freedom of speech;
freedom from arrest in civil actions;
exemption from jury duty;
exemption from being subpoenaed to attend court as a witness; and
freedom from obstruction, interference, intimidation and molestation.
The rights and powers of the House as a collectivity may be categorized as follows:
the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
the power to discipline; that is, the right to punish persons guilty of breaches of privilege or contempt, and the power to expel Members guilty of disgraceful conduct;
the right to provide for its proper constitution, including the authority to maintain the attendance and service of its members;
the right to inquiries and to call witnesses and demand papers;
the right to administer oaths to witnesses appearing before it; and
the right to publish papers without recourse to the courts relating to the content.
Details of the Privileges
Freedom of speech and publication under parliamentary authority
This is defined under Article 105(1) and clause (2).
It gives the members of parliament freedom of speech and provides under Article 105(2) that no member of parliament will be liable in any proceedings before any Court for anything said or any vote given by him in the Parliament or any committee thereof.
Also, no person will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.
The same provisions are stated under Article 194, in that members of the legislature of a state are referred to instead of members of parliament.
Article 105 is an absolute privilege given to the members of the parliament, but this privilege can be used in the premises of the parliament and not outside the parliament.
Freedom from being arrested
In civil cases, member of parliament cannot be arrested 40 days before and 40 days after the session of the house. If in any case a member of Parliament is arrested within this period, the person concerned should be released in order to attend the session freely. This privilege is already incorporated under Section 135A of the Civil Procedure Code, 1908.
In criminal matters, Members of Parliament are not on a different footing than a common citizen. It means that a Member of Parliament does not enjoy any immunity from being arrested in a criminal case, during the session or otherwise.
Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening any of the members. The strangers may attempt to interrupt the sessions.
Right to prohibit the publication of its reporters and proceedings
The right has been granted to remove or delete any part of the proceedings that took place in the house.
Right to regulate internal proceedings
The House has the right to regulate its own internal proceedings and also has the right to call for the session of the Legislative assembly.
But it does not have any authority in interrupting the proceedings by directing the speaker of the assembly.
Right to punish members or outsiders for contempt
This right has been given to every house of Parliament. If any of its members or maybe non-members commit contempt or breach any of the privileges given to him/her, the houses may punish the person.
The houses have the right to punish any person for any contempt made against the houses in the present or in the past.
Case Laws
In K. Anandan Nambiar case, the Supreme Court held that a Member of Parliament can claim no special status higher than that of an ordinary citizen, and is as much liable to be arrested, detained or questioned, even during the Session.
In State of Kerala Vs. K. Ajith and Others, SC observed, that privileges and immunities are not gateways to claim exemptions from the general law of the land as the criminal law governs the action of every citizen.