Parliamentary Privileges Under Articles 105 and 194

Articles 105 and 194 of the Constitution give Parliament and the State Legislatures, and their members and committees, certain powers, privileges and immunities: freedom of speech in the House, protection from court proceedings for anything said or any vote given there, and other privileges carried over from the past until a law defines them. The current position, after the seven-judge bench decision in Sita Soren v. Union of India (2024), is that this immunity protects the legislative function, not a member who takes a bribe to speak or vote.

This explainer is written for B.A. LL.B. and LL.B. students preparing Constitutional Law papers, and for any citizen who has wondered why an MLA cannot be sued for a speech in the Assembly but can still be prosecuted for corruption. The topic comes up often in exams and in the news, including in our own Tamil Nadu Legislative Assembly.

What do Articles 105 and 194 actually say?

The two articles are drafted in parallel. Article 105 deals with Parliament; Article 194 deals with the Legislature of each State. Each has four clauses:

1. Clause (1): subject to the Constitution and to the rules and standing orders regulating procedure, there shall be freedom of speech in the House.
2. Clause (2): no member is liable to any proceedings in any court in respect of anything said or any vote given in the House or a committee, and no person is liable for publication of any report, paper, votes or proceedings by or under the authority of the House.
3. Clause (3): in other respects, the powers, privileges and immunities are those defined by law, and until so defined, those that existed immediately before section 15 (for Article 105) or section 26 (for Article 194) of the Constitution (Forty-fourth Amendment) Act, 1978 came into force.
4. Clause (4): the same protection extends to persons who have a right to speak in and take part in the proceedings of the House, even if they are not members of it.

Students often miss the history of clause (3). The original 1950 text tied these residuary privileges to those of the House of Commons of the United Kingdom. The Forty-fourth Amendment removed the express reference but froze the position as it stood before the amendment, so in practice the House of Commons position still feeds in. Neither Parliament nor any State Legislature has yet passed a law defining its privileges, so they remain largely uncodified.

Which privileges are written down and which are not?

Only freedom of speech and immunity for speech, votes and authorised publications appear in the text. Others, such as the power to punish for contempt or breach of privilege, the power to regulate internal proceedings and the power to expel a member, rest on clause (3). Rules of procedure of each House, including the Tamil Nadu Legislative Assembly Rules, set out how a privilege question is raised and referred to the Committee of Privileges. Readers who need the exact rule numbers should check the current published Rules of the House concerned.

How has the Supreme Court read these articles?

• Pandit M.S.M. Sharma v. Sri Krishna Sinha (1959): reported at 1959 Supp. (1) SCR 806. The Court held that Article 19(1)(a), being general, must yield to Article 194(1) and the latter part of 194(3), which are special provisions.
• Special Reference No. 1 of 1964: reported at (1965) 1 SCR 413, an advisory opinion under Article 143 on the powers, privileges and immunities of State Legislatures. Justice Sarkar wrote a minority view. Because it is advisory, some commentators argue it does not bind under Article 141, so read the opinion itself before relying on it.
• Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007): the cash for query case, decided on 10 January 2007. A five-judge bench, by a 4:1 majority, upheld the December 2005 expulsion of MPs caught in a filmed sting operation accepting money to ask questions in Parliament. It held that the House can expel a member under Article 105(3), but that its actions are open to judicial review. Article 122 bars challenge for mere procedural irregularity, not for gross illegality or unconstitutionality. Justice R.V. Raveendran dissented.
• Sita Soren v. Union of India (2024): decided on 4 March 2024 by a unanimous seven-judge bench led by Chief Justice D.Y. Chandrachud. It overruled P.V. Narasimha Rao v. State (1998), a 3:2 decision that had protected legislators who took bribes to vote. The Court held that bribery is not protected by Articles 105(2) or 194(2). The offence under the Prevention of Corruption Act, 1988 is complete on acceptance of the bribe, whether or not the member later votes as agreed.

Sita Soren also laid down a two-part test. A claim of privilege must be tied to the collective functioning of the House, and the act must be essentially related to the discharge of the functions of the House. Taking a bribe meets neither condition.

What has the Madras High Court said?

The best known recent Tamil Nadu example is the gutkha case. On 19 July 2017, DMK members, including M.K. Stalin, displayed sachets of banned gutkha on the floor of the Assembly. The matter went to the Committee of Privileges, which issued show cause notices. An earlier order of the High Court quashed fresh notices issued in the matter. On appeal by the Assembly Secretary and the Privileges Committee, a division bench of Justices S.M. Subramaniam and C. Kumarappan set that order aside in July 2024. As reported, the bench held that a breach of privilege does not lapse on dissolution of the Assembly and that the Committee could continue. Students should read the judgment itself before quoting its reasoning in detail.

How should I write this in an exam?

1. Start with the text: list the four clauses of Article 105 and note that Article 194 mirrors it for States.
2. Explain clause (3) and the Forty-fourth Amendment, and that privileges are still not codified.
3. Deal with privilege versus fundamental rights using M.S.M. Sharma.
4. Cover judicial review using Raja Ram Pal and Article 122.
5. End with Sita Soren (2024) and the two-part test, stating clearly that P.V. Narasimha Rao (1998) is no longer good law.
6. Add one State example, such as the Tamil Nadu gutkha matter, to show current relevance.

A student in Nagercoil answering a 15 mark question can score well with this order alone, as long as the case names and years are correct. Constitutional Law is taught in detail in our programmes.

Sources

• Constitution of India, Article 105: text of the article and its drafting history.
• Constitution of India, Article 194: text of the article for State Legislatures.
• Supreme Court Observer, Sita Soren v. Union of India: report of the March 2024 seven-judge bench judgment.
• iPleaders, Raja Ram Pal v. Speaker, Lok Sabha (2007): summary of facts, bench and holdings.
• LiveLaw, Parliamentary privileges and fundamental rights: discussion of M.S.M. Sharma and the 1964 Special Reference.
• DT Next, Madras High Court revives gutkha privilege notices: report of the July 2024 division bench ruling.