Article 105

Article 105 of the Constitution of India defines the powers, privileges, and immunities of both Houses of Parliament, their members, and committees. It ensures that Parliament functions independently and effectively, free from external interference, while maintaining accountability within the legislative framework. This Article upholds the freedom of debate, legislative autonomy, and institutional integrity of Parliament—key pillars of India’s parliamentary democracy.

Constitutional Framework

Article 105, contained in Part V, Chapter II (The Parliament), establishes four main provisions relating to the privileges of Parliament and its members:

1. Freedom of Speech in Parliament
2. Immunity from Legal Proceedings
3. Definition of Powers and Privileges
4. Extension of Privileges to Non-Members

These provisions collectively safeguard the independence of Parliament, allowing its members to perform their duties fearlessly and responsibly.

1. Freedom of Speech in Parliament – Clause (1)

Under Article 105(1), Members of Parliament enjoy freedom of speech and expression within the House and its committees.

• This freedom is absolute within the legislative context, meaning members can express their views freely without fear of civil or criminal liability.
• However, it is subject to the Constitution, parliamentary rules, and standing orders. This ensures order and discipline while allowing diverse opinions and criticism.
• The purpose of this immunity is to promote open, candid, and fearless debate, which is essential for representative democracy.

This privilege differs from the general right to freedom of speech under Article 19(1)(a), as it is specific to parliamentary proceedings and cannot be restricted by ordinary laws relating to defamation or sedition.

2. Immunity from Legal Proceedings – Clause (2)

Under Article 105(2), Members of Parliament are granted complete legal immunity for:

• Anything said or any vote given in Parliament or in its committees.
• Official publications of parliamentary reports, papers, votes, or proceedings authorised by either House.

This means:

• Members cannot be sued, prosecuted, or questioned in any court for their statements or votes made within Parliament.
• This immunity is essential to protect members from external pressures, ensuring independence and dignity of legislative work.

However, this protection does not extend to statements made outside Parliament, including public addresses, press conferences, or social media posts.

3. Powers, Privileges, and Immunities – Clause (3)

Article 105(3) authorises Parliament to define its own powers and privileges by law. Until such a law is enacted, the privileges of Parliament and its members remain as they existed before the Forty-fourth Amendment (1978), which codified continuity from pre-independence British parliamentary traditions.
The privileges generally include:

• Freedom from arrest in civil cases during parliamentary sessions.
• Exemption from jury service while the House is in session.
• Right to regulate internal proceedings without judicial interference.
• Right to control publication of debates and proceedings.

These privileges are collective (applicable to the House as an institution) and individual (enjoyed by members), ensuring both institutional integrity and individual protection.

4. Application to Non-Members – Clause (4)

Article 105(4) extends the same privileges and immunities to non-members who are authorised to participate in parliamentary proceedings.

• This includes individuals like the Attorney General of India, who has the right to speak or participate in the proceedings of Parliament or its committees but does not have voting rights.
• It may also apply to ministers who are not members of either House but are granted temporary rights to address or attend parliamentary sessions.

This provision ensures that all participants in parliamentary deliberations enjoy freedom of expression and immunity when discharging their official duties.

Significance of Article 105

Article 105 is fundamental to the autonomy and authority of Parliament. It serves several crucial purposes:

1. Safeguards Legislative Independence:Prevents undue interference by the executive or judiciary in legislative proceedings.
2. Promotes Free Debate:Ensures that members can express their views openly and hold the government accountable without fear of repercussions.
3. Preserves Institutional Dignity:Protects Parliament’s internal functioning from external control, maintaining the balance of power among constitutional organs.
4. Ensures Legislative Accountability:While granting immunity, it also binds members to ethical and procedural discipline through parliamentary rules.
5. Facilitates Democratic Functioning:Upholds open discussion as the foundation of democracy, ensuring transparency and informed decision-making.

Comparison with Other Constitutional Provisions

• Article 194: Grants similar powers, privileges, and immunities to the members of State Legislatures, mirroring Article 105.
• Article 19(1)(a): Provides freedom of speech to all citizens, though subject to reasonable restrictions; by contrast, Article 105 provides absolute privilege within Parliament.
• Article 122: Restricts judicial interference in parliamentary proceedings, reinforcing the autonomy granted by Article 105.

Together, these provisions create a balanced framework of freedom, protection, and accountability for legislative bodies.

Judicial Interpretation and Landmark Judgments

The Supreme Court of India has clarified the scope and limitations of parliamentary privileges under Article 105 through several landmark decisions:

• Keshav Singh v. Union of India (1965):This case examined the conflict between legislative privilege and judicial power. The Court held that parliamentary privileges are subject to the Constitution and the judiciary can intervene in cases of constitutional violation.
• R. S. Nayak v. A. R. Antulay (1984):The Court ruled that parliamentary privilege cannot be used as a shield for criminal misconduct unrelated to parliamentary duties.
• Indira Gandhi v. Raj Narain (1975):Emphasised that parliamentary privileges, though essential, are not absolute and must operate within the constitutional framework.
• K. S. Puttaswamy v. Union of India (2017):Reaffirmed that constitutional rights, including privacy and accountability, apply even to privileged institutions like Parliament, within the bounds of constitutional supremacy.

These rulings collectively ensure that while parliamentary privileges are respected, they remain subject to constitutional limitations and judicial scrutiny when misused.

Historical and Comparative Context

The concept of parliamentary privilege in India draws heavily from British parliamentary traditions, where such privileges evolved to protect Parliament from royal interference. In India, these privileges were codified to suit a republican and constitutional democracy, balancing freedom with accountability.
During the Constituent Assembly Debates, members such as Dr. B. R. Ambedkar and Alladi Krishnaswami Ayyar emphasised that privileges were necessary for free legislative functioning but should not grant arbitrary powers. The Forty-fourth Amendment Act (1978) reaffirmed this by retaining existing privileges while recognising the need for Parliament to define them by law.

Limitations and Challenges

Despite its importance, Article 105 faces certain challenges and debates:

• Absence of Codification: Parliament has not yet enacted a comprehensive law defining its privileges, leading to ambiguity.
• Possibility of Abuse: Privileges, if misused, can be employed to shield members from accountability.
• Judicial Balancing: Courts must carefully interpret the extent of privilege while upholding constitutional supremacy.
• Changing Media Environment: The growth of digital and social media has raised questions about publication and reporting privileges.

These issues highlight the need for a clear legislative definition of privileges to prevent misuse while retaining parliamentary independence.

Contemporary Relevance

In the modern era of transparency and media scrutiny, Article 105 continues to play a pivotal role in preserving the freedom and dignity of Parliament. It ensures that legislators can perform their duties without fear but also within the boundaries of constitutional ethics.
As debates on accountability and privilege intensify, the Article remains a living testament to the balance between freedom of expression and responsible governance in India’s parliamentary democracy.

Conclusion

Article 105 of the Indian Constitution is a cornerstone of India’s legislative framework. By granting freedom of speech, legal immunity, and defined privileges to Parliament and its members, it safeguards the independence of the legislature from external pressures while upholding democratic accountability.