Opinion Sita Soren, Ramesh Bidhuri, Keshav Singh: The question of a legislator’s privilege has a long and vexed history
As a seven-judge bench of the Supreme Court examines the extent of immunity that a parliamentarian has in ‘Sita Soren v Union of India’, this question has gained fresh urgency
A view of the old Parliament Building. (Express Photo by Renuka Puri) 
The “temple of democracy” metaphor symbolises the sanctity of the space that Parliament offers to amplify the voices of the unheard. When a new parliament building (temple) is built, the previous god is expected to be meticulously and ritualistically relocated with reverence.
In the case of Parliament, divinity is defined by the quality of its debates, conflicts, and, eventually, resolution, which is impossible without the Opposition. But on September 22, a Member of Parliament from the Bharatiya Janata Party, Ramesh Bidhuri, made unsavoury remarks about another MP, Danish Ali, from the Bahujan Samaj Party. He used religious slurs, marring the sanctity of Parliament. Bidhuri’s speech was expunged from the records of the House, ultimately, as he was found to be using unparliamentary language.
Articles 105 and 194 of the Constitution of India bestow certain privileges and immunities upon MPs and MLAs. These privileges are the same as those available to members of the House of Commons as of 1950.
The first portion of Article 105(2)/194(2) protects lawmakers from legal action “in respect of” anything stated or voted on in Parliament/State Legislatures. The Supreme Court of India has given such broad meaning to the terms “in respect of” that even the act of paying and receiving payments to “vote” against a no-confidence motion has been considered protected by Article 105(2) in the case of P V Narasimha Rao vs State/CBI, 1998.
The case relates to the no-confidence motion introduced against the sitting Prime Minister Narasimha Rao and the allegation against a few members who were bribed to vote in support of the government. The Supreme Court held that MPs who took bribes and voted are protected under Article 105 but those who took bribes and did not can be prosecuted under the Prevention of Corruption Act, 1988.
It is an academically moot question as to which freedom would prevail: A citizen’s right to free speech and expression or an MP/MLA’s right to free speech within the walls of the House. MPs/MLAs have immunity for anything said inside the House (subject to restrictions imposed by Articles 121 and 211) and they also have the freedom to speak outside the House, like common citizens, subject to restrictions governed by Article 19(2).
One restriction to using this privilege is that “anything said or vote given” must occur during a Parliamentary sitting and in the course of Parliamentary business. The second part of Article 105(2)/194(2) grants protection to a person for the publishing of any report, document, vote, or actions made by or under the authority of the House. No Member of Parliament shall be subject to any proceedings in any court in respect of anything spoken or any vote cast by him in Parliament or any committee thereof, according to Article 105(2). This was confirmed by the Supreme Court of India in the Narasimha Rao case.
Articles 105(3) and 194(3) of the Indian Constitution state that the privileges of the Indian Parliament and the State Legislature, respectively, shall be the same as those of the British House of Commons until the Legislatures and the Parliament pass a law codifying their privileges. In India, they are governed by Constitutional provisions and a statute, Parliamentary Proceedings (Protection of a Publication) Act, 1956.
The Supreme Court of India had to respond to the clash between a citizen’s fundamental right to free speech and publication and privileges available to MPs/MLAs in the case of M S M Sharma v Sri Krishna Sinha, 1959, more commonly known as the Searchlight magazine case.
Searchlight, started by the freedom fighter Sachchidananda Sinha, was a daily bulletin published from Patna. The magazine published some expunged parts of a speech given inside the House and a case was initiated against the editor. The Supreme Court of India upheld the detention of the editor thus approving rights enjoyed by MPs/MLAs as provided by Article 105/194.
In the Keshav Singh case, where the judiciary and legislature were at odds in 1964-65, the matter came up for consideration before the Supreme Court of India through presidential reference. Though the dispute was settled, the legal intricacies of the case are quite interesting. It was heard by a mammoth 28-judge bench of the Allahabad High Court, excluding the two judges of the High Court who had granted bail to Keshav Singh.
Eventually, the President of India sought the legal opinion of the Supreme Court. The apex court, balancing the privileges and immunities available to MPs/MLAs and the power of judicial review available with the court, held that judges of the high court must be protected thus making them equal to MPs/MLAs and not inferior (if they were to be reprimanded in the Assembly as called).
Every Member of Parliament/State Legislative Assembly has “freedom of speech” under Article 105(1)/194(1) inside the House which cannot be enquired by constitutional courts and outside the House same as us, which can be enquired by courts testing Article 19(2).
On September 25, the Supreme Court of India constituted a seven-judge bench (Sita Soren case) to decide whether a legislator enjoys immunity under Article 194(2) of the Constitution from prosecution for accepting bribes to vote in Parliament or an Assembly. This case could have a far-reaching impact in governing the conduct of MPs/MLAs outside the House. It is important to note that Rahul Gandhi, Member of Parliament, was disqualified by the district court and Gujarat High Court because of comments made outside the House.
Kumar teaches at Amity Law School, Noida and Kartikeya is a legal researcher based out of Delhi
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