Legislative Privilege

Articles 122(1) and 212(1) are the courts' side of the arrangement: "The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure." Clause (2) of each protects an officer or member exercising powers to regulate procedure or maintain order from the jurisdiction of any court.

Read those words closely. The bar is on questioning validity on the ground of irregularity of procedure, not on questioning proceedings that are illegal or unconstitutional. That distinction is the ratio of Raja Ram Pal.

The 1965 reference, named without a citation

The leading early authority is the advisory opinion of 1965 on a reference about the Uttar Pradesh Legislative Assembly, the Keshav Singh case. Its report has not been read for this book, so no citation is printed, and what follows comes from the account in Raja Ram Pal.

The Assembly jailed Keshav Singh, not a member, for its contempt, on a warrant that did not state the facts constituting it. He moved the High Court under article 226 and a Division Bench released him on interim bail. The Assembly then resolved that Keshav Singh, his advocate and the two judges had all committed contempt and should be produced before it in custody. A Full Bench stayed that resolution, and the President referred the matter under article 143(1). Raja Ram Pal records the questions as including whether the House is "the sole and exclusive judge" of a contempt committed outside it, and whether a High Court may entertain habeas corpus against an unspeaking warrant. It takes from the opinion the proposition that neither House can by its own declaration create a new privilege, so its extent is known to the courts.

Expulsion, and how far a court may look

Facts. Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, decided on 10 January 2007. The report carries no citation line, so no report reference is printed. A television channel telecast a programme showing ten members of the Lok Sabha and one of the Rajya Sabha accepting money for raising questions in the House. Committees of each House inquired, found the allegations established, and both Houses expelled the members. They petitioned under article 32, the questions being whether the Houses were competent to expel at all, and if so whether an expulsion is subject to judicial review.

Held. The Houses had the power to expel, and the expulsions were upheld. Of the principles the Court set out, these carry the marks. "There is no basis to claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the Constitution." Articles 122 and 212 "prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure", and "The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny." Against that stand the limits: "The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature". Finding no violation of articles 14, 20 or 21, the Court dismissed the petitions.

Why it matters. It fixes the scope of articles 122 and 212. The line is irregularity against illegality: procedure inside the House is immune, an unconstitutional exercise of power is not. It also shows the difference between having jurisdiction and using it, the Court asserting the power of review at length and then declining to touch a punishment "which must be left to the prerogative and sole discretion of the legislative body".

Bribery, twice decided

Facts. P.V. Narasimha Rao v. State (CBI/SPE), decided on 17 April 1998 by a Bench of five. The report carries no citation line, so no report reference is printed. A no confidence motion against the Government was defeated in 1993. It was alleged that members had been paid to vote against it, and prosecutions were launched against the alleged bribe givers and takers. The accused claimed immunity under article 105(2).

Held. By a majority, that the bribe takers who voted against the motion were immune. "In respect of" in article 105(2) "must receive a broad meaning", so a member is protected from any court proceeding having a nexus with anything said or any vote given, a vote being an extension of speech: "the alleged bribe takers, other than Ajit Singh, have the protection of Article 105(2) and are not answerable in a court of law for the alleged conspiracy and agreement." The member who abstained got no immunity, having cast no vote, and the bribe givers got none, because article 105(2) "does not provide that what is otherwise an offence is not an offence". The Court also held that legislators are public servants under the Prevention of Corruption Act, 1988.

Facts. Sita Soren v. Union of India, decided on 4 March 2024 by a Bench of seven. The report carries no citation line, so no report reference is printed. The appellant, a member of the Jharkhand Legislative Assembly, was alleged to have accepted a bribe to vote for a particular candidate in a Rajya Sabha election in 2012, but voted for her own party's candidate. She sought to quash the charge sheet, claiming immunity under article 194(2) on the authority of P.V. Narasimha Rao. The High Court refused, and the appeal travelled from two judges to three to a Constitution Bench and then to seven.

Held. The majority in P.V. Narasimha Rao was overruled. The Court laid down a twofold test for a claim of privilege by an individual member: "First, the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator." Bribery fails it. "In respect of" means "arising out of" or "bearing a clear relation to" and "cannot be interpreted to mean anything which may have even a remote connection with the speech or vote given". Bribery "is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast". The offence "is agnostic to the performance of the agreed action and crystallizes on the exchange of illegal gratification", so it is complete on acceptance, whether or not the vote is cast. The Court added that whether a claim to privilege conforms to the Constitution "is amenable to judicial review", that the House's disciplinary authority and a criminal court's jurisdiction "exist in distinct spheres", and that voting in a Rajya Sabha election is within article 194(2).

Why the pair matters. The 1998 result was impossible to defend for long: a legislator who took the money and voted as agreed was immune, one who took it and voted his conscience was not. Sita Soren is recent and often stated wrongly. Narasimha Rao was not distinguished and not merely doubted: its majority was overruled on the immunity of a legislator bribed for a vote or a speech. What survives from 1998 is the separate holding that a legislator is a public servant, and the twofold test now governs any privilege claimed by an individual member.

What survives, and what does not

A worked example

Anita, a member of a State Legislative Assembly, is paid to vote against a Bill and votes as agreed. In the debate she accuses a civil servant of theft, and afterwards repeats it on the steps of the House. The Assembly then resolves to reprimand a journalist who published a committee's draft.

Step one, may Anita be prosecuted for the bribe? Yes, on Sita Soren. The claim fails the twofold test, and the offence was complete when she accepted the money. Before 4 March 2024 the answer on P.V. Narasimha Rao would have been no.

Step two, may the civil servant sue her for what she said in the House, and for the repetition outside? Not for the first: article 194(2) makes her not liable to any proceedings in any court in respect of anything said in the Legislature. Yes for the second: the immunity attaches to what is said in the House, a repetition outside being an ordinary publication.

Step three, may the Assembly punish the journalist? It may act under article 194(3), contempt being among the privileges that clause continues.

Step four, may a court examine that punishment? Yes, within limits. On Raja Ram Pal, article 212(1) bars a challenge founded on irregularity of procedure, but proceedings "tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny", and a complaint under article 20 or 21 must be examined. The court will not weigh the adequacy of the material.

What it does NOT mean

It does not mean a House can create a privilege by saying it has one. Raja Ram Pal takes from the 1965 reference the proposition that neither House can by its own declaration create a new privilege, which is why its extent is a question of law for the courts.

It does not mean articles 122 and 212 are ouster clauses. They exclude one ground only, and an expulsion remains reviewable for illegality and for breach of fundamental rights.

Quick revision

• Articles 105 and 194 confer three things: freedom of speech in the House, immunity for anything said or any vote given, and the residual privileges continued by clause (3) until defined by law. No such law has been made.
• Articles 122 and 212 bar challenge only for irregularity of procedure.
• Keshav Singh (1965), report not read here: neither House can by its own declaration create a new privilege.
• Raja Ram Pal (2007): Parliament may expel a member; no absolute immunity under article 105(3); illegality is reviewable, irregularity is not; the Court will not assess the adequacy of the material.
• P.V. Narasimha Rao (1998), five judges: bribe takers who voted were immune, the abstainer and the bribe givers were not; legislators are public servants under the Prevention of Corruption Act, 1988.
• Sita Soren (2024), seven judges: that majority is overruled. Twofold test; "in respect of" means arising out of; bribery is complete on acceptance; the House's discipline and a criminal court's jurisdiction are distinct spheres.
• None of the three reports read for this chapter carries a report citation, so each is identified by date.

Test yourself

1. Set out the three things articles 105 and 194 confer, and say which has never been defined by law.

2. What do articles 122 and 212 exclude, and what do they leave open? Use Raja Ram Pal.

3. State the twofold test in Sita Soren and apply it to a member paid to ask a question in the House.

4. Explain the relationship between P.V. Narasimha Rao and Sita Soren, and what survives of the earlier decision.

5. A member repeats outside the House a statement made inside it. Advise on both.