ARTICLE 105
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.
2. About Article 105
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, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
(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.
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. In cases where a Member oversteps or exceeds the contours of admissible free speech, the Speaker or the House itself will deal with it, as opposed to the court.
3. Restrictions on Privileges
- 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.
- In the 17th-century case ‘R vs Elliot, Holles and Valentine’, Sir John Elliot, a member of the House of Commons was arrested for seditious words spoken in a debate and for violence against the Speaker.
- However, the House of Lords provided immunity to Sir John, saying that words spoken in Parliament should only be judged therein
- This privilege has also been enshrined in the Bill of Rights 1689, by which the Parliament of England definitively established the principle of a constitutional monarchy.
- In the 1884 case of ‘Bradlaugh v. Gosset’, then Chief Justice Lord Coleridge of the House of Lords observed: “What is said or done within the walls of Parliament cannot be inquired into in a court of law.”
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For Prelims: Sedition, Article 105, Government of India Act, 1935
For Mains: 1.Analyze some landmark cases related to sedition in India and their impact on the interpretation of the law.
2.Critically evaluate the arguments for and against retaining the sedition law in India. |
