Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof

Article 85, Draft Constitution 1948

(1) Subject to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

(3) In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the commencement of this Constitution.

(4) The provisions of clauses (1), (2) and (3) of this article shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise take part in the proceedings of, a House of Parliament as they apply in relation to members of Parliament.

Article 105, Constitution of India 1950

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

⁠(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

⁠(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees df each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.

⁠(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.

Draft Article 85 (Article 105) was debated on 19 May 1949 and 16 October 1949. It conferred privileges and immunities to the Parliament and its members.

A member moved an amendment to insert ‘or any committee thereof’ in clause 4. He argued that the immunity under this Draft Article should not only be conferred to the members of the Parliament, but also non-members who might be a part of any committee set up by the Parliament. He anticipated that the committees would call upon experts and other professions for their testimonies and such persons must have the same parliamentary privileges. This amendment was adopted.

Another member proposed to add a new clause which would make the Parliament the final judge on any issue relating to the privilege and such orders passed would be enforceable by the officers of the Parliament. The Assembly rejected this proposal.

A member was concerned with the effect of this Draft Article on the freedom of the press. He noted that any such speech or proceedings which the Parliament could publish, the press must have an analogous right. The Draft Article’s disregard to the freedom of the press was a lacuna that needed to be addressed. He further objected to clause (3) which noted that the members of the Parliament enjoyed privileges of the members of the House of Commons of the Parliament of the United Kingdom. He noted that the privileges of the members of the House of Commons were not codified in a statute. Instead was a matter of precedents that could be understood through common law textbooks. This would put a heavy burden on the Indian parliamentarians, as they would have to hire or seek help from the English lawyers to better understand their privileges. A member of the Drafting Committee noted that the members of the House of Commons enjoyed the ‘widest privileges’. If the Constitution had to merely encode the existing privileges of the Provincial Legislatures, that would be restrictive: the right to punish a person for contempt of the Parliament would be absent. He further clarified that Australian and Canadian Constitutions had similar direct reference to the House of Commons.

The Constituent Assembly adopted the Draft Article as amended on 19 May 1949. Further, the Assembly accepted minor amendments on 16 October 1949.