Constitution of India
Article 105: Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof
Part V — The Union, Chapter II — Parliament
Clause (1)
WHAT IT SAYS: Subject to the Constitution and parliamentary rules/standing orders, there shall be freedom of speech in Parliament. WHAT IT MEANS: MPs can speak freely inside Parliament without fear of external legal action, but this freedom is bounded by the Constitution itself and House rules. KEY DOCTRINE: Parliamentary Free Speech Doctrine — distinct from Article 19(1)(a), this is an absolute privilege not subject to 'reasonable restrictions'.
Clause (2)
WHAT IT SAYS: No MP shall be liable to any court proceedings for anything said or any vote given in Parliament or its committees; nor shall anyone be liable for authorized publications of parliamentary reports, papers, votes, or proceedings. WHAT IT MEANS: Two-fold immunity — (a) personal immunity for MPs' speech/votes, and (b) publication immunity for reports authorized by either House. Courts cannot entertain defamation or other suits based on parliamentary speech. KEY DOCTRINE: Absolute Parliamentary Immunity — the word 'anything' is of the widest import, equivalent to 'everything' (Tej Kiran Jain v. N. Sanjiva Reddy, 1970). After Sita Soren v. Union of India (2024), bribery is excluded from this immunity.
Clause (3)
WHAT IT SAYS: In other respects, the powers, privileges and immunities of each House, its members and committees, shall be as defined by Parliament by law from time to time; until so defined, they shall be those existing immediately before the 44th Amendment Act, 1978 (Section 15) came into force. WHAT IT MEANS: Parliament has residual power to codify privileges by law. Until it does so, the benchmark is the privileges that existed before the 44th Amendment. Parliament has NOT yet enacted any such comprehensive law. KEY DOCTRINE: Doctrine of Uncodified Privileges — absence of codification means courts rely on UK House of Commons conventions as they existed at the relevant date, creating ambiguity.
Clause (4)
WHAT IT SAYS: Clauses (1), (2) and (3) also apply to persons who by virtue of the Constitution have the right to speak in, and take part in proceedings of, a House or its committees. WHAT IT MEANS: Extends parliamentary privileges to non-members who participate — e.g., the Attorney General of India (Article 76) and Ministers who are members of the other House. KEY DOCTRINE: Extended Privilege Doctrine — privileges are function-based, not membership-based; anyone constitutionally authorized to participate gets protection.
Constitutional Inspiration
SOURCE(S): 1. United Kingdom — Article 9, Bill of Rights 1689 Original provision: 'Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.' What India kept: The core idea of absolute immunity for parliamentary speech and votes was adopted nearly verbatim in Clause (2). 2. United Kingdom — House of Commons Privileges (uncodified conventions) Original provision: Accumulated common law privileges of the House of Commons including contempt power, freedom from arrest in civil cases, and right to regulate internal proceedings. What India kept: Original Clause (3) directly referenced House of Commons privileges as the baseline until Parliament defined its own. 3. Australia & Canada — Constitutional references to House of Commons privileges Original provision: Section 49 of the Australian Constitution and Section 18 of the Canada Constitution Act, 1867 both pegged legislative privileges to those of the UK House of Commons. What India kept: The drafters followed the Australian-Canadian model of referencing House of Commons privileges as a ready-made benchmark. INDIA'S SPECIFIC ADAPTATIONS: 1. Clause (1) adds 'Subject to the provisions of this Constitution' — unlike UK parliamentary sovereignty, Indian parliamentary privilege is subordinate to the Constitution, especially Fundamental Rights. 2. 42nd Amendment (1976) tried to let Parliament 'evolve' its own privileges without any external benchmark — reversed by the 44th Amendment (1978) to prevent unchecked expansion of privilege during Emergency-era abuse. 3. Clause (4) extends privileges to non-member participants — this was an original Indian contribution ensuring experts and constitutional office-holders (Attorney General, Ministers from other House) get equal protection when participating in proceedings.
Constituent Assembly Debate
DEBATED ON: 19 May 1949 and 16 October 1949 (CAD Volume VIII and Volume X) Draft Article number: 85 KEY SPEAKERS: 1. A member of the Drafting Committee (likely T.T. Krishnamachari) — Argued that House of Commons privileges were the 'widest privileges' and that merely encoding Provincial Legislature privileges would be too restrictive, lacking contempt power. 2. H.V. Kamath (C.P. & Berar) — Raised concerns about referencing the House of Commons; urged that Indian privileges should be self-contained. 3. P.S. Deshmukh (C.P. & Berar) — Wanted the reference to the House of Commons omitted entirely as it was beneath the dignity of a sovereign nation. 4. Naziruddin Ahmad (West Bengal) — Objected that House of Commons privileges were uncodified and based on precedents from common law textbooks, placing a heavy burden on Indian parliamentarians to consult English lawyers. MAJOR DISAGREEMENTS: 1. Reference to House of Commons — Multiple members objected to pegging Indian privileges to UK House of Commons conventions, as they were uncodified and would require reliance on English legal expertise. 2. Freedom of the Press — A member argued that the Draft Article ignored press freedom; if Parliament could publish proceedings, the press should have an analogous right. 3. Parliament as final judge — A member proposed making Parliament the final judge on privilege issues, with orders enforceable by Parliament's officers. The Assembly rejected this proposal. 4. Extension to committees — A member moved to insert 'or any committee thereof' in Clause (4) to extend privileges to non-members appearing before committees. This amendment was adopted. FINAL OUTCOME: The Draft Article was adopted as amended on 19 May 1949, with the committee-extension amendment accepted and the Parliament-as-final-judge proposal rejected; minor amendments were further accepted on 16 October 1949. AMBEDKAR'S KEY QUOTE (paraphrased): The Drafting Committee preferred the House of Commons benchmark because the Australian and Canadian Constitutions had similar direct references, and encoding only Provincial Legislature privileges would have been too restrictive.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Tej Kiran Jain v. N. Sanjiva Reddy (1970) — 'Anything said' in Article 105(2) is of the widest import, equivalent to 'everything'; once Parliament is sitting and business is transacted, all speech is absolutely immune. 2. In Re Keshav Singh (Special Reference No. 1 of 1964, decided 1965) — Parliamentary privileges are subject to the Constitution; judiciary can intervene where fundamental rights are violated; Articles 105(3)/194(3) cannot restrict citizens' right to petition courts. 3. P.V. Narasimha Rao v. State (CBI/SPE) (1998) — 3:2 majority held that MPs who accepted bribes and voted as agreed enjoyed immunity under Article 105(2); those who took bribes but did not vote had no immunity. [OVERRULED in 2024] 4. Sita Soren v. Union of India (2024) — Unanimous 7-judge bench overruled Narasimha Rao; held that bribery is not protected by Articles 105(2)/194(2); established a two-fold test: privilege must be tethered to collective functioning of the House AND necessary for discharge of essential legislative duties. 5. State of Kerala v. K. Ajith (2021) — Privileges and immunities are not gateways to claim exemption from criminal law; lawmakers cannot claim cover for vandalism or criminal acts on the floor of the House. 6. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) — Parliament's power to expel members for breach of ethics is subject to judicial review; privileges do not override fundamental rights. NOTABLE DISSENTS: 1. Justice S.C. Agrawal in P.V. Narasimha Rao (1998) — Dissented from the majority, arguing that 'in respect of' means 'arising out of' and the offence of bribery is complete before entering the House, hence no immunity should apply. This minority view was vindicated by the 7-judge bench in Sita Soren (2024). AMENDMENT HISTORY OF ARTICLE 105: 1. 42nd Amendment Act, 1976 (Section 21) — Substituted Clause (3) to allow Parliament to 'evolve' its own privileges 'from time to time', removing the House of Commons benchmark. 2. 44th Amendment Act, 1978 (Section 15) — Reversed the 42nd Amendment's change to Clause (3); restored the requirement for Parliament to define privileges by law, with the interim benchmark being privileges existing before the 44th Amendment came into force. SCHOLARS & JURISTS: 1. M.C. Setalvad (former Attorney General) — Argued in the Keshav Singh Reference that interpreting Article 194(3) falls exclusively within the domain of the Supreme Court and High Courts, not the legislature. 2. M.P. Jain (Constitutional Law scholar) — Advocated for codification of parliamentary privileges to end ambiguity and reliance on British conventions in a sovereign republic.