According to Erskine May, "Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively.. and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its members. Other such rights and immunities such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.

When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament. Each House also claims the right to punish as contempt actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers."

What is contempt ?

"Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence."

In interpreting these privileges, therefore, regard must be had to the general principle that the privileges of Parliament are granted to members in order that "they may be able to perform their duties in Parliament without let or hindrance." 3 They apply to individual members "only in so far as they are necessary in order that the House may freely perform its functions. They do not discharge the member from the obligations to society which apply to him

as much and perhaps more closely in that capacity, as they apply to other subjects." Privileges of Parliament do not place a Member of Parliament on a footing different from that of an ordinary citizen in the matter of the application of laws, unless there are good and sufficient reasons in the interest of Parliament itself to do so.

Constitutional provisions

The Constitution specifies some of the privileges. They are freedom of speech in Parliament; 6 immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof; immunity to a person from proceedings in any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. Courts are prohibited from inquiring into the validity of any proceedings in Parliament on the ground of an alleged irregularity of procedure. No officer or Member of Parliament empowered to regulate procedure or conduct of business or to maintain order in Parliament can be subject to a court's jurisdiction in respect of exercise by him of those powers. No person can be liable to any civil or criminal proceedings in any court for publication in a newspaper of a substantially true report of proceedings of either House of Parliament unless the publication is proved to have been made with malice. This immunity is also available for reports or matters broadcast by means of wireless telegraphy. This immunity, however, is not available to publication of proceedings of a secret sitting of the House.

In other respects, the powers, privileges and immunities of each House of Parliament and of the members and committees thereof 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, its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

The framers of the Constitution had provided for the same powers and privileges for members, etc. as were possessed and enjoyed by the House of Commons at the commencement of the Constitution. The reference to the House of Commons in clause (3) of article 105 was omitted by the Constitution (Forty-fourth Amendment) Act, 1978. Since, however, no law defining the privileges has been made by Parliament so far, in actual practice, the position in this regard remains the same as it existed at the commencement of the Constitution.

Statutory provision

Apart from the privileges specified in the Constitution, the Code of Civil Procedure, 1908, provides for freedom from arrest and detention of members under civil process during the continuance of the meeting of the House or of a committee thereof and forty days before its commencement and forty days after its conclusion.

Privileges based on Rules of Procedure and precedents

The House has a right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member on a criminal charge or for a criminal offence.

Members or officers of the House cannot be compelled to give evidence or to produce documents in courts of law, relating to the proceedings of the House without the permission of the House.

Members or officers of the House cannot be compelled to attend as witnesses before the other House or a House of a State Legislature or a committee thereof without the permission of the House and without the consent of the member whose attendance is required.

Consequential powers of the House

In addition to the above mentioned privileges and immunities each House also enjoys certain consequential powers necessary for the protection of its privileges and immunities. These powers are: to commit persons, whether they are members or not, for breach of privilege or contempt of the House; to compel the attendance of witnesses and to send for persons, papers and records; to regulate its procedure and the conduct of its business; to prohibit the publication of its debates and proceedings and to exclude strangers.

Penal powers of the House

If any individual or authority violates or disregards any of the privileges, powers and immunities of the House or members or committees thereof, he may be punished for "breach of privilege" or "contempt of the House". The House has the power to determine as to what constitutes breach of privilege and contempt. The penal jurisdiction of the House in this regard covers its members as well as strangers and every act of violation of privileges, whether committed in the immediate presence of the House or outside of it. A person found guilty of breach of privilege or contempt of the House may be punished either by imprisonment, or by admonition (warning) or reprimand. Two other punishments may also be awarded to the members for contempt, namely, 'suspension' and 'expulsion' from the House.

Freedom of speech and immunity from court proceedings

Members have freedom of speech in the House and enjoy immunity from proceedings in any court in respect of anything said or any vote given by them in Parliament or in any committee thereof. The freedom of speech of members in the House, in fact, is the essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the House without any fear. Importance of this right for the Members of Parliament is underlined by the immunity accorded to them from civil or criminal proceedings in a court of law for having made any speech/disclosure or any vote cast inside the House or a committee thereof. Any investigation outside Parliament, of anything that a member says or does in the discharge of his parliamentary duties amounts to a serious interference with the member's freedom of speech in the House. Therefore, to attack a member or to take or even threaten to take any action against him including institution of legal proceedings on account of anything said or any vote given by him on the floor of the House would amount to a gross violation of the privilege of a member.

The immunity granted to members under article 105(2), covers anything said in Parliament even though it does not strictly pertain to the business before the House. As stated by the Supreme Court:

The article confers immunity, inter alia, in respect of 'anything said ... in Parliament'. The word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament... Once it was proved that Parliament was sifting and its business was being transacted, anything said during the course of that business would be immune from proceedings in any court. This immunity is not only complete but is as it should be ... The courts have no say in the matter and should really have none.

The freedom of speech available to the members on the floor of the House is different from that available to the citizens under article 19(2). A law made under this article providing for reasonable restrictions on the freedom of speech of the citizens would not circumscribe the freedom of speech of the members within the walls of the House. Members enjoy complete protection even though the words uttered by them in the House are malicious and false to their knowledge. Courts have no jurisdiction to take action against a member for his speech made in the House even if it amounts to contempt of the court.

The express constitutional provisions contained in clauses (1) and (2) of article 105 are thus a complete and conclusive code in respect of the privilege of freedom of speech and immunity from legal liability for anything said in the House or for publication of its reports. Anything which falls outside the ambit of these provisions is, therefore, liable to be dealt with- by the courts in accordance with law. Thus, if a member publishes questions which have been disallowed by the Chairman and which are defamatory, he will be liable to be dealt with in a court under the law of defamation.

The right of freedom of speech in the House is, however, circumscribed by the constitutional provisions and the rules of procedure. When a member violates any of the rules, the Chair has ample powers conferred by the rules to deal with the situation.

In view of the immunity conferred on the member's right to speech and action in the House, its misuse can have serious effects on the rights and freedom of the people who could otherwise seek the protection of the courts of law. Members, therefore, as people's representatives, are under greater obligation to exercise this right with utmost care and without any prejudice to the law of the land. The Committee of Privileges, has emphasised that a Member of Parliament does not enjoy unrestricted licence of speech within the walls of the House. The Committee has observed:

It is against the rules of parliamentary debate and decorum to make defamatory statements or allegations of incriminatory nature against any person and the position is all the worse if such allegations are made against persons who are not in a position to defend themselves on the floor of the House. The privilege of freedom of speech can only be secured, if members do not abuse it.

While doing so, the Committee has approvingly referred to the following observations contained in the Second Report of the Committee of Privileges, House of Commons (Session 1978-79) (HC 222, p.v., para. 10): ... The privilege of freedom of speech is an important and necessary element in the work of Parliament. However, because of the immunity it confers, its misuse can have serious effects. Your Committee are well aware that from time to time members, in their anxiety to make their point, may use their privilege of freedom of speech in a way which because of the harm which it may do to other important rights or freedoms and the disproportionate damage which may result to individuals who could otherwise seek the protection of the courts of law, would be regarded by other members as quite unjustifiable... Your Committee, therefore, consider it right to emphasise the obligation upon all members to have regard, in any decision to make statements in the House which, if made outside the House, would be defamatory or even criminal, to the widespread effect of such statements when reported through newspaper reports and broadcasts of proceedings, and to the prejudice and possibly undeserved injury which may result to individual citizens who have neither remedy nor right of reply. The provisions of article 105(2) also apply in relation to persons who by virtue of the Constitution have the right to speak in, and otherwise to take part in the proceedings of either House or any committee thereof 37 as they apply in relation to Members of Parliament.

Questioning a member for his disclosure in the House

Members cannot be held accountable/questioned by an outside body for any speech/disclosure made or a vote given inside the House. This is essential for giving effect to their freedom of speech in the House. It is also a settled procedure that no member or officer of the House should give evidence in respect of any proceedings of the House or any committee thereof or any document relating to or connected with any such proceedings or in the custody of the officer of the House or produce any such document in a court of law without the leave of the House being first obtained.

As regards disclosure that may be made by a member on the floor of the House and his accountability to any outside body, the Committee of Privileges has, inter alia, observed:

... it would be impeding a Member of Parliament in the discharge of his duties as such member if he is to be questioned in any place outside

Parliament for a disclosure that he may make in Parliament. The right of a Member of Parliament to function freely and without fear or favour is in India, as in the U.K., a constitutional guarantee. This guarantee is subject only to the rules of the House and ultimately to the disciplinary jurisdiction of the House itself... any investigation outside Parliament of anything that a member says or does in the discharge of his duties as a Member of Parliament would amount to a serious interference with the member's right to carry out his duties as such member. If in a case a member states something on the floor of the House which may be directly relevant to a criminal investigation and is, in the opinion of the investigating authorities, of vital importance to them as positive evidence, following procedure has been prescribed by the Committee:

... the investigating authority may make a report to the Minister of Home Affairs accordingly If the Minister is satisfied that the matter requires seeking the assistance of the member concerned, he would request the member through the Chairman to meet him. If the member agrees to meet the Home Minister and also agrees to give the required information, the Home Minister will use it in a manner which will not conflict with any parliamentary right of the member. If, however, the member refuses to respond to the Home Minister's request, the matter should be allowed to rest there.

Right to exclude strangers

The right of the House to exclude strangers from the House is a necessary concomitant of the privilege of freedom of speech on the floor of the House. In a deliberative body like Parliament, privacy of debate is no less important for free and fair discussion than is the immunity from legal proceedings. As observed by the Supreme Court:

... the freedom of speech claimed by the House (of Commons) and granted by the Crown is, when necessary, ensured by the secrecy of the debate which in turn is protected by prohibiting publication of the debates and proceedings as well as by excluding strangers from the House. This right was exercised in 1923 and again as late as on 18 November 1958. This shows that there has been no diminution in the eagerness of the House of Commons to protect itself by secrecy of debate by excluding strangers from the House when any occasion arises.

Rules of Procedure empower the Chairman to regulate the admission of strangers and order their withdrawal from any part of the House.

Right to control publication of proceedings

Closely allied to the power to exclude strangers is the power of the House to prohibit publication of its debates and proceedings. Under the Constitution, absolute immunity from proceedings in any court of law has been conferred on all persons connected with the publication of proceedings of either House of Parliament, if such publication is made by or under the authority of the House. The publication of proceedings of Parliament is subject to the control of the respective Houses.

The Secretary-General is authorised to prepare and publish a full report of the proceedings of the House in such form and manner as the Chairman from time to time directs.

Publication by any person in a newspaper of a substantially true report of any proceedings of either House of Parliament is protected under the Constitution from civil or criminal proceedings in court unless the publication is proved to have been made with malice. Statutory protection has also been given to such publication.

But when debates or proceedings of the House or its committees are reported mala fide, i.e., there is either willful misrepresentation or suppression of speeches of particular members or a garbled, distorted and perverted accounts of debates, it is a breach of privilege and contempt of the House. The Supreme Court has held:

... the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication f even a true and faithful report of debates or proceedings that take place within the House.

A fortiori the House had ... the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings. Nor do we share the view that it will not be right to entrust our Houses with those powers, privileges and immunities, for we are well persuaded that our Houses... will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases.

As observed by the Chairman in a case, The newspapers are eyes and ears of the public not present in the House. Unless the House puts a ban, the newspapers must be held to have the right to reproduce fairly and faithfully and accurately the proceedings or any part thereof without let or hindrance from any person not authorised by the House or by any law. The newspaper may not misrepresent by editing, adding or unfairly omitting to give a totally wrong impression.
If a member publishes separately from the rest of the debate a speech made by him in the House, it becomes a separate publication unconnected with any proceedings in Parliament. He, therefore, cannot claim this privilege and he would be held responsible under the law for any libelous matter it might contain.

Premature publication of proceedings

Premature publication of proceedings, particularly those of the committees has been held to be a violation of the privilege and contempt of the House. In a case, contents of the evidence tendered by a witness before the Committee of Privileges, Rajya Sabha, were published in newspapers before the report of the Committee was presented to the House. The Committee held that the act of premature publication of proceedings of the Committee constituted breach of privilege and contempt of the House. Having regard to the regret expressed and apology offered by the newspapers, the Committee, however, did not recommend any punishment in this case. While cautioning all concerned that in future any premature publication or disclosure of proceedings of the committees would be dealt with seriously, the Committee observed