Congress Leader of Opposition in the Rajya Sabha Mallikarjun Kharge has claimed he was “insulted” as he was summoned by the Enforcement Directorate on Thursday during the working hours of Parliament. On Friday, House Chairman M Venkaiah Naidu said that MPs do not enjoy any immunity from arrest in criminal cases when the House is in session, and they cannot avoid summons issued by law enforcement agencies.
Naidu said it was “a wrong notion” among members that they have privilege from action by agencies while Parliament is in session. He went on to cite Article 105 of the Constitution, entailing MPs certain privileges so they can perform their duties without any hindrances; and Section 135A of the Civil Procedure Code that, he said, incorporates the privileges.
“However, in criminal matters, MPs are not on a different footing than a common citizen. That means MPs do not enjoy any immunity from being arrested in a criminal case during the Session or otherwise,” Naidu said, also citing past observations in this regard and Supreme Court rulings.
Naidu reiterated that no member of the House should avoid appearing before any investigating agency if called, by citing reasons of House duty.
Article 105 of the Constitution
It says: a) Subject to the provisions of the Constitution and rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament; b) No member shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof; c) The powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, may from time to time be defined.
Section 135A of Civil Procedure Code
It exempts from arrest and detention under civil process members of Parliament, Legislative Assemblies and Councils, those part of an ongoing meeting or committee of such a House, and during 40 days before and after such meeting, sitting or conference. It also says that no member shall be arrested in a civil case 40 days before and after the adjournment of the House and also when the House is in session. No member can be arrested within the precincts of Parliament without the permission of the House to which he/she belongs.
The Supreme Court view
In July 2021, the Supreme Court rejected a plea by the Kerala government to withdraw criminal cases against its MLAs, who destroyed public property and disrupted a Budget speech in the Assembly in 2015.
The state had claimed parliamentary privilege and immunity from criminal prosecution, arguing that the incident occurred inside the Assembly hall. They also said that prior sanction of the Speaker was necessary before the registration of an FIR by the police.
But the Supreme Court held that legislators who indulge in vandalism and general mayhem cannot claim parliamentary privilege and immunity from criminal prosecution, and that this could not be called “essential legislative action”. The Court also held that vandalism on the floor of the Assembly could not be equated with the right to protest by Opposition legislators.