Does Article 105 and 194 of the Indian Constitution, which bestow privileges on the members of Parliament and Legislators, give them immunity from proceeding in any court for an act that falls under criminal limb?

Parliamentary or Legislative 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 function, and which exceed those possessed by other bodies or individuals. The privilege of Parliament or Legislature are rights which are "absolutely necessary for the due execution of its powers". It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves and perform their functions without hindrance, fear or favour.

Articles 105 and 194 of the Constitution provide in similar terms for the privileges and immunities of Members of Parliament and MLAs respectively. Clause 1 of Article 105 recognizes the freedom of speech in the Parliament (Art. 194 for legislature of every State). However, the freedom recognized by clause 1 is subject to the provisions of the Constitution and standing orders regulating the procedure thereof. Clause 2 of Article 105 enunciates a rule of immunity which protects a member of the Parliament or legislature from a proceeding in any court "in respect of anything said or a vote given".

Further, clause 3 of Article 105 provides that in other respects the privileges and immunities are such as defined by law. Until defined by law there being presently no law on the subject - the privileges and immunities of the members of the House shall be such as were in existence before Section 15 (for Parliament) and Section 26 (for legislature of state) of the Forty-Fourth Amendment to the Constitution came into force.

And at the time of adoption of the Constitution, clause 3 of Article 194 provided that the law in relate to privileges, immunities and powers of a House shall be those of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution.

The position in England, by referring to the various judgement of English courts, it is evident that a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity only if the action bears nexus to the effective participation of the member in the House.

The position in India can be traced through various judgement. In P. V. Narsimha Rao vs State (AIR 1998 SC 2120), the Supreme Court in its judgement of the majority held that, the protection under Article 105(2) is limited to court proceedings that impugn the speech that is given or the vote that is cast or arises thereout or that the object of the protection would be fully satisfied thereby. It is not enough that Members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote.

To enable Members to participate fearlessly in parliamentary debates, Members need the wider protection of immunity against all civil and criminal proceedings "that bear a nexus to their speech or vote".

However, judgement of the minority on this aspect held that, a Member of Parliament does not enjoy immunity under Article 105(2) or under Article 105(3) of the Constitution from being prosecuted before a criminal court for an offence. If the connection between the alleged act and outcome thereof was explicit then the term "in respect of" in article 105(2) and 194(2) should not receive broad meaning

In Justice Ripusudan Dayal (Retd.) & Ors. Vs State of M.P and Ors (AIR2014SC1335). The court held that, the scope of the privileges enjoyed depends upon the need for privileges i.e., why they have been provided for. The basic premise for the privileges enjoyed by the Members is to allow them to perform their functions as Members and no hindrance is caused to the functioning of the House.

It is clear that the basic concept is that the privileges are those rights without which the House cannot perform its legislative functions. They do not exempt the Members from their obligations under any statute which continues to apply to them like any other law applicable to ordinary citizens.

Now, during the last few years, it has been evident that the legislators have taken the defence of "protest" while making any statement or conduct that otherwise amounts to an offence. In P.V Narasimha Rao case the same defence were taken by the accused-legislator, that the action inside the House was a form of 'protest' which bears a close nexus to the freedom of speech, and thus is covered by Article 194 (2). The majority observed that there must be a nexus between the act or incident and the freedom of speech or to vote.

What may be termed "protest", must be found by the extent of the ambit of the privilege of 'freedom of speech' provided to the members of the House. In Lokayukta, Justice Ripusudan Dayal (Retired) case the court laid down the law for identification of the content of privileges. It was held that the members shall only possess such privileges that are essential for undertaking their legislative functions.

Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law.

From the observations discussed above, make it clear that "freedom of speech in Parliament or the legislature" is absolute and unfettered; that the freedom of speech so conferred is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament and the concerned legislature.

However, this is also recognition of the fact that Members need to be free of all constraints of what they say in legislature that clause (2) of Article 105 and 194 puts negatively what clause (1) of the said article states affirmatively; that both clauses must be read together to determine their content of privileges. And so, the extent of the content of privilege must be that which bears a close nexus between the alleged act and the outcome thereof or which is essential for undertaking their legislative functions.

The protection is absolute against court proceedings that have a nexus with what has been said, or a vote that has been cast in Parliament.