Article 105 of Constitution: The limits to free speech in Parliament, and what Supreme Court has ruled

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Article 105 of Constitution: The limits to free speech in Parliament, and what Supreme Court has ruled

Context- Protesting against the expunction of parts of his speech on the motion of thanks on the President’s Address, Leader of Opposition in Rajya Sabha and Congress president Mallikarjun Kharge has argued that MPs have freedom of speech, and that he did not make any personal allegations in the House.

In his letter to Rajya Sabha Chairman Jagdeep Dhankhar on Thursday (February 9), Kharge cited Article 105 of the Constitution that deals with the privileges and powers of parliamentarians.

(Credits- Indian Express)

What does Article 105 say?

Article 105 of the Constitution deals with “powers, privileges, etc of the Houses of Parliament and of the members and committees thereof”, and has four clauses. It reads:

  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 any thing said or any vote given by him in Parliament or any committee thereof
  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.”
  • Simply put, Members of Parliament are exempted from any legal action for any statement made or act done in the course of their duties. For example, a defamation suit cannot be filed for a statement made in the House.
  • This immunity extends to certain non-members as well, such as the Attorney General for India or a Minister who may not be a member but speaks in the House.

So are there absolutely no restrictions on this privilege?

  • There are some, indeed. For example Article 121 of the Constitution prohibits any discussion in Parliament regarding the “conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge..”.

Where did the idea of this privilege of Parliament originate?

  • The Government of India Act, 1935 first brought this provision to India, with references to the powers and privileges enjoyed by the House of Commons in Britain. An initial draft of the Constitution too contained the reference to the House of Commons, but it was subsequently dropped.
  • However, unlike India where the Constitution is paramount, Britain follows Parliamentary supremacy. The privileges of the House of Commons is based in common law, developed over centuries through precedents.

And what have courts in India ruled?

1- In the 1970 ruling in ‘Tej Kiran Jain v N Sanjiva Reddy’, the Supreme Court dismissed a plea for damages filed by the followers of the Puri Shankaracharya against parliamentarians.

  • The petitioners claimed that when the issue was debated in Parliament, uncharitable remarks were made against the seer. The petitioners argued that the MPs’ immunity “was against an alleged irregularity of procedure but not against an illegality”.
  • However, the SC ruled that “the word “anything” in Article 105 is of the widest import and is equivalent to ‘everything’.”

2-  Almost two decades later, in 1998, the SC in the case of ‘P V Narasimha Rao vs. State’ answered two questions on parliamentary privilege, broadly relating to questions of corruption.

  • A five-judge Bench of the apex court ruled that the ordinary law would not apply to the acceptance of a bribe by an MP in case of parliamentary proceedings.
  • The Court rationalized this by saying it will “enable members to participate fearlessly in Parliamentary debates” and that these members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote.

Conclusion- Art 105 was inserted to enable parliamentarians to debate and speak fearlessly in parliament . However, privileges of parliamentarians need to be codified to prevent its misuse.

Source- Indian Express

Syllabus- GS-2; Free Speech; Parliament

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