CDS (II) 2020 General Knowledge · Question 74 of 120

Correct — B, 1 and 2 only. Statements 1 and 2 together state the settled position the Supreme Court has reached on parliamentary privilege. In M. S. M. Sharma v. Sri Krishna Sinha the Court held that the privileges preserved by Article 105(3) are not cut down by the free-speech guarantee of Article 19(1)(a), which is statement 1. In the Keshav Singh reference of 1964-65 it held that privilege does not stand outside the rest of the Constitution — the protections of Articles 20 to 22 hold, and the Court's own remedial jurisdiction under Article 32 survives, which is statement 2. Statement 3 fails because the immunity is not symmetrical: a member cannot be arrested in a civil matter during a session and for forty days before and after it, but there is no such protection in a criminal case. Statement 4 fails on the plain words of Article 105(2), which protect 'anything said or any vote given by him in Parliament or any committee thereof' — inside the House, not in a private or personal capacity outside it.

• (a)1, 2 and 4 — Adds statement 4, which contradicts the text of Article 105(2). The immunity attaches to what is said or voted in Parliament or its committees, and a member speaking in a private capacity outside the House is as liable as anyone else.
• (c)2 and 3 — Drops the sound statement 1 and keeps statement 3. Freedom from arrest for a member covers civil process only; criminal law applies to members exactly as it does to other citizens.
• (d)1 and 4 only — Pairs a true statement with a false one. Statement 4 is the one that fails, because privilege protects the member in the House and not the individual outside it.

Article 105 sets out the privileges of Parliament. Clause (1) grants freedom of speech in Parliament, subject to the Constitution and to the rules of procedure. Clause (2) gives immunity from court proceedings for anything said or any vote given in Parliament or a committee, and extends that protection to publication of reports and proceedings under the House's authority. Clause (3) leaves the other privileges to be defined by Parliament by law and, until so defined, keeps those the House had before section 15 of the Forty-fourth Amendment came into force. Clause (4) applies the same protection to non-members entitled to take part in proceedings, such as the Attorney-General and ministers who are not members of that House. Article 194 does the same for State legislatures.

The productive way to hold this topic is to ask what privilege is for. It exists so that a House can do its work without outside interference, which means the protection follows the function. Anything said or voted inside the House or a committee is covered; a speech at a public meeting or a statement to the press is not. Freedom from arrest is likewise a protection of attendance, so it covers civil arrest, which could keep a member away, and not criminal process, which the law applies to everyone. The two court holdings then complete the picture: privilege prevails over Article 19(1)(a), but it cannot override the personal-liberty protections of Articles 20 to 22 or shut out the Supreme Court under Article 32.

• Article 105(2) protects a member from court proceedings for anything said or any vote given in Parliament or any committee thereof, and covers authorised publication of proceedings.
• Article 105(3) leaves other privileges to be defined by Parliament by law, and until then preserves those existing before section 15 of the Forty-fourth Amendment Act, 1978.
• A member's freedom from arrest runs during a session and forty days before and after, and applies to civil cases only, not criminal ones.
• In M. S. M. Sharma v. Sri Krishna Sinha the Supreme Court held that Article 105(3) privileges are not subject to Article 19(1)(a).
• In the Keshav Singh reference the Court held that privilege must yield to Articles 20 to 22 and cannot exclude its jurisdiction under Article 32; Article 194 carries the same scheme for State legislatures.

• Extending the immunity to what a member says outside the House. It is confined to Parliament and its committees.
• Assuming freedom from arrest covers criminal cases. It does not.
• Thinking privilege has been codified. Parliament has still not enacted a law defining privileges under Article 105(3).

As a multi-statement item on the limits of privilege, or as a single-statement question on freedom from arrest or on the immunity for publication of proceedings.

• practice — not a real PYQ

  The immunity under Article 105(2) of the Constitution of India covers

  • (a)anything said by a member anywhere in the country
  • (b)anything said or any vote given by a member in Parliament or any committee thereof
  • (c)only votes given in the House, not speeches
  • (d)only statements made to the press by a member

  Answer(b) anything said or any vote given by a member in Parliament or any committee thereof — the protection follows the parliamentary function, not the person.

• practice — not a real PYQ

  A Member of Parliament's freedom from arrest applies to

  • (a)both civil and criminal cases
  • (b)criminal cases only
  • (c)civil cases only
  • (d)preventive detention only

  Answer(c) civil cases only — it runs during a session and for forty days before and after, and gives no protection against criminal process.