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  • 08 August, 2022

  • 10 Min Read

The privilege of MPs does not extend to criminal cases

The privilege of MPs does not extend to criminal cases

  • MPs do not enjoy any protection from being arrested in a criminal case during the Session or otherwise," the Rajya Sabha Chairman made clear in the House.
  • Members of Parliament (MPs) are "not on a different footing than a normal citizen" in criminal cases.
  • A day after House Speaker and leader of the Congress, Mallikarjun Kharge, brought up the fact that he had been summoned by the Enforcement Directorate when the House was in session, the Chairman made his observation.


  • Article 105: According to Article 105 of the Constitution, Members of Parliament are entitled to several privileges that allow them to carry out their parliamentary responsibilities without interference.
  • A member of Parliament has the privilege of not being subject to civil arrest 40 days prior to the start of a session or committee meeting and for 40 days following.
  • The Civil Procedure Code of 1908's Section 135A already includes this privilege.

Parliamentary privileges

  • parliamentary privilege is the totality of the special rights that each House collectively and each member individually enjoys that outweigh those that belong to other groups or individuals and without which they are unable to carry out their duties.
  • While certain privileges are only subject to custom and parliamentary legislation, others are governed by statute.
  • These privileges and immunities are as per Indian Constitutional Articles 105 and 122 while the state-specific provisions are Article 194 and 212

Historical background

  • As a result of the 1833 Charter Act, the Governor-Council General was expanded to include a fourth member, setting the stage for the development of Parliamentary powers in India. A brand-new type of legislative framework was developed. This laid the foundation for an organization that eventually developed into a fully functional legislative body.
  • The formal opposition to the assembly's privileges decreased after the Indian Councils Act of 1909 made indirect elections to the legislature possible.
  • Freedom of speech in the legislature was guaranteed under the Government of India Act of 1935.
  • Some of the privileges of Parliament, including those of its members and committees, are now protected by the Constitution, and the House is governed by specific laws and procedural norms; nevertheless, some rights still rely on precedents from the House of Commons.

Sources of privileges

The five sources of the privileges are as follow :

  • Constitutional provisions
  • Various laws made by Parliament
  • Rules of both the Houses
  • Parliamentary conventions
  • Judicial interpretations

Constitutional provision

  • The two houses of parliament and their committees' members are granted special rights, immunities, and exemptions under Articles 105 and 194.
  • The Attorney General of India and Union Ministers are among those who are granted these powers if they speak or participate in any committee of the Parliament.
  • President, who is a vital member of the legislature, does not get to enjoy these
  • The Constitution's 44th Amendment changed Article 105 (3), which now contains two parts.
  • Each House of Parliament, its Members, and Committees shall have the authority, privileges, and immunities as may be prescribed by law from time to time by the Parliament.
  • As long as no specific definition of these rights, privileges, or immunities is provided by Parliament, they will be the same as those enjoyed by the House of Commons on January 26, 1950.
  • Although the House of Commons has not been specifically mentioned in Article 105 (3), these privileges nevertheless apply until Parliament passes legislation.

Types of Parliamentary Privileges in India

Collective privileges

The privileges belonging to each House of Parliament collectively are:

  • The capacity to both publish reports, discussions, and proceedings and to prohibit others from doing the same.
  • Under the freedom of the press, it may publish accurate reports of parliamentary proceedings without the House's consent.
  • This right of the press does not, however, apply in cases of secret House meetings.
  • Keep outsiders away from the gathering and arrange secret meetings to discuss important subjects.
  • Make regulations to control its own operations and business dealings, as well as to decide on such matters.
  • A member has the right to be immediately informed of their arrest, detention, conviction, imprisonment, and release.
  • Ask questions and demand someone's presence.
  • The actions of a House or its committees cannot be looked at by the courts.

Individual Privileges

The privileges belonging to the members individually are:

  • No member may be detained between the 40 days prior to the start of the session and the 40 days following its conclusion.
  • This privilege is only available in civil cases; it is not available in criminal proceedings or instances involving preventive custody.
  • Members of parliament have the freedom to speak their minds. Any statements made or votes cast in the parliament or its committees are not subject to judicial review. The articles of the Constitution as well as the conventions and procedures governing how Parliament conducts itself place restrictions on this freedom.
  • When Parliament is in session, members are exempt from jury duty. They are free to testify in court without providing any proof.

What is a breach of privilege?

  • Any violation of a member of Parliament's or Parliament's privilege is a breach of privilege.
  • Any activity that "casts reflections" on lawmakers, the legislature, or its committees may be deemed a violation of privilege, among other reasons.
  • This could involve the publication of news articles, editorials, or claims made in interviews for newspapers, magazines, television, or in public speeches.

Advantages of Parliamentary Privileges

  • As a result, tensions are reduced, goodwill is fostered, and cooperation between the two parts of government is encouraged: The parliamentary system of government encourages collaboration between the executive and legislative arms of government, which is advantageous.
  • Quicker and more effective judgment: To enable quicker and more effective decision-making, the parliamentary system is integrated with the legislative and executive arms of government.
  • Less employees and money are needed because the legislative and executive work together to administer a cabinet system of government in a parliamentary system of government. Unlike a presidential system, where each branch of government is divided and staffed by a different group of individuals.
  • It fosters excellent governance: The parliamentary system of government encourages effective management of the nation because all cabinet members are motivated to work hard by the individual and collective responsibilities given to the parliament. Additionally, accountability and transparency are guaranteed.

Issues with Parliamentary privileges

  • While a parliamentary system may seem to always favor good governance, it can also breed too confident and strong lawmakers, which can result in the abuse of political power. The legislative system will elevate and make untouchable members of parliament.
  • The Prime Minister is devoted to his party rather than the country's citizens since, in a parliamentary system of government, he is directly elected as the head of his party. He will therefore have greater loyalty to his party than to his people.


In order for the parliament to function effectively, members are given privileges. The foundation of democracy will be lost if privileges are not granted in accordance with fundamental rights, which are necessary to protect citizens' rights. The parliament must respect all other rights guaranteed by the constitution. They must always keep in mind that their powers do not make them corrupt.

Because of this, it is frequently effectively decided that when deciding on privileges, the house cannot simply adopt a British equivalent, but instead must decide and analyze if it matches Indian Democracy and does not insult the state's Republic characteristic.

Source: The Hindu

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