Parliamentary Privileges & Immunities — Articles 105 & 194, Breach of Privilege, Keshav Singh Case

Overview

Parliamentary privileges are special rights, immunities, and exemptions enjoyed by Parliament as a whole, its committees, and its individual members. They are essential for the independent functioning of the legislature and to protect it from executive interference. The constitutional basis is Article 105 (Parliament) and Article 194 (State Legislatures).

Constitutional Provisions

The 44th Amendment (1978) replaced the reference to "House of Commons of the United Kingdom" in Articles 105(3) and 194(3) with the phrase "as they were immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978." Parliament has not yet codified these privileges by legislation.

Categories of Parliamentary Privileges

Collective Privileges (of the House)

Individual Privileges (of Members)

Breach of Privilege vs Contempt of House

These are related but distinct concepts:

Breach of Privilege — Any act or omission that infringes a specific privilege of Parliament or its members (e.g., misreporting Parliamentary proceedings in a manner that reflects adversely on the House).

Contempt of House — Any act, words, or publication that obstructs, insults, or impedes the House or its members in the discharge of their functions. Contempt is broader — an act may be contempt without technically constituting a breach of any specific privilege.

Any member may raise a privilege motion; if the Speaker/Chairman admits it, the matter is referred to the Committee of Privileges for investigation.

Landmark Case Law on Articles 105/194

The Supreme Court has progressively defined the scope of parliamentary privileges through key judgments:

Don't confuse: Sita Soren (2024) overruled PV Narasimha Rao (1998) on bribery — but Tej Kiran Jain (1970) on absolute immunity for speech itself remains good law. Speech in Parliament → privileged. Bribery to influence speech/vote → NOT privileged.

Keshav Singh Case (1965)

This is the most important judgment on parliamentary privileges vis-à-vis fundamental rights.

Background: Keshav Singh, a non-member from Gorakhpur (Uttar Pradesh), distributed a pamphlet against a Congress MLA accusing him of corruption. The UP Legislative Assembly found him guilty of contempt and sentenced him to imprisonment. When Singh's lawyer (B.R. Mehta) moved the Allahabad High Court for a habeas corpus petition, the Assembly passed a resolution holding the two judges who granted bail and Singh's lawyer also in contempt.

Supreme Court Ruling (1965): A Special Bench of 7 judges of the Supreme Court held:

• Courts can review whether the exercise of legislative privilege violates Fundamental Rights
• The privilege of a House does not extend to punishing persons not before it for acts unconnected with pending proceedings
• The two judges who granted bail had not committed contempt; the Assembly could not arrest them
• Legislative privileges are subject to constitutional mandates including Part III (Fundamental Rights)

Significance: The case established that legislative privilege is not absolute and judicial review is available where fundamental rights are violated by the exercise of such privilege.

Anti-Defection & Privilege

There is a tension between Article 105(2) (immunity for votes in the House) and the Tenth Schedule (anti-defection law). The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) held that:

• The Speaker's decision under the Tenth Schedule is open to judicial review
• Voting against the party whip may attract disqualification — this co-exists with, but does not negate, privilege for the act of voting itself
• The anti-defection mechanism is a constitutional exception to the general privilege protection

Parliamentary Committees on Privileges

Functions: Examine cases of alleged breach of privilege referred to it; investigate facts; recommend punishment (reprimand, suspension, imprisonment).

Don't confuse Privileges Committee vs Ethics Committee: Privileges Committee examines breaches of parliamentary privilege (e.g., contempt, obstruction). Ethics Committee (LS Ethics Committee permanent since 2015; RS adopted Code of Conduct in 2005) examines ethical misconduct by MPs. Mahua Moitra's December 2023 expulsion was on the recommendation of the Ethics Committee (cash-for-query allegations), NOT the Privileges Committee — a recurring UPSC trap.

Historical Precedents — MP Expulsions

High-Yield Confusion Pairs (Rule C)

Past UPSC Questions on Parliamentary Privileges (Verified)

Mains:

• UPSC 2014 (GS2, 12.5 marks): "The powers, privileges and immunities of Parliament and its Members as envisaged in Article 105 of the Constitution leave room for a large number of un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of legal codification of the 'parliamentary privileges'. How can this problem be addressed?" — GS2 2014 Q3

Prelims:

• UPSC 2025: Statement on Article 194(2) — "Members of a State Legislature are not liable to any proceedings in any court in respect of anything said within the House" — TRUE (mirror of Art 105(2) at the State level)
• Likely future Prelims hits: Sita Soren 2024 bench (7-judge), Cash-for-Query 2005 (11 MPs expelled), 146 MPs December 2023, 40-day rule applicability (civil only), Padi Kaushik Reddy citation

Cross-paper relevance

• GS2 (primary) — Articles 105/194, Speaker's privileges, Sita Soren reasonable-nexus test, Padi Kaushik Reddy
• GS2 — Parliament — privileges flow from parliamentary supremacy; codification debate
• GS4 (Ethics) — MP integrity, cash-for-query, code of conduct; bribery vs free speech tension
• Essay — "Parliamentary privilege in a democratic age"; "When immunity becomes impunity — codifying privileges"

Key Points for UPSC

• Freedom from arrest applies only to civil arrest — not criminal proceedings, preventive detention, or arrest under tax/revenue statutes
• Articles 105 and 194 are not symmetrical with Article 19(1)(a) — privilege of speech in Parliament is absolute; free speech outside is subject to reasonable restrictions
• Parliament has not yet codified parliamentary privileges by legislation. The UK position is more nuanced: Article 9 of the Bill of Rights, 1689 gives statutory expression to the freedom-of-speech privilege ("freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court"), but the wider body of parliamentary privileges remains governed by common law and Erskine May's treatise (A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, first published 1844, continually updated) — they are NOT fully codified by statute
• The 44th Amendment (1978) updated the reference but retained the essential content
• Keshav Singh (1965) — legislative privilege subordinate to fundamental rights; courts can issue writs even in privilege matters where fundamental rights are involved

Recent Developments (2024–2026)

Mass Suspension of MPs — December 2023 — Privilege and the Opposition's Role

In December 2023, a record 146 Opposition MPs (100 from Lok Sabha + 46 from Rajya Sabha) were suspended during the Winter Session of Parliament over their demand for a Home Minister statement on a security breach in the Lok Sabha visitor's gallery (13 December 2023). This was the largest mass suspension in Indian parliamentary history. The suspensions were rolled out over five days (14, 18, 19, 20, 21 December 2023) and were made under Rule 374A of Lok Sabha Rules (automatic 5-day suspension for grossly disorderly conduct, inserted in 2001) and corresponding Rajya Sabha rules.

The episode raised fundamental questions about Article 105(2) — parliamentary privilege of speech — and whether the Speaker's power to suspend is subject to judicial oversight. Opposition MPs argued their suspension prevented them from exercising their constitutional privilege of participation in Parliamentary proceedings.

UPSC angle: Prelims — 146 MPs suspended December 2023; largest suspension in history; Rule 374A. Mains — analyse whether mass suspensions are a legitimate exercise of Speaker's power or a violation of opposition members' Article 105 privileges; should privilege rules be codified?

Supreme Court on Anti-Defection and Speaker's Immunity (2024–2025)

In Padi Kaushik Reddy v. State of Telangana (2025 INSC 912), a Division Bench (CJI B.R. Gavai + Justice A.G. Masih) held that the Speaker acting as a tribunal under Paragraph 6 of the Tenth Schedule does NOT enjoy constitutional immunity under Articles 122 or 212. The Court also called on Parliament to consider whether the Speaker should continue to adjudicate defection cases, given the systemic delays and partisan pressures inherent in the Speaker's office. In a November 2025 follow-up, the Court warned the Telangana Speaker of "gross contempt" for delay in deciding pending disqualification petitions — a remarkable assertion of judicial oversight over the Speaker's tribunal role.

This is significant for parliamentary privileges: while the Speaker's conduct of House proceedings is immune from judicial scrutiny under Article 122, the Speaker's quasi-judicial function under the Tenth Schedule is reviewable.

UPSC angle: Prelims — Padi Kaushik Reddy (2025); Speaker under Tenth Schedule not immune under Article 122; disqualification adjudication. Mains — critically examine the dual role of the Speaker as House presiding officer (privileged under Article 122) and Tenth Schedule tribunal (judicially reviewable).

SC on Article 105 and Legislators' Bribery — Seven-Judge Constitution Bench (March 2024)

In Sita Soren v. Union of India (2024 INSC 161, decided 4 March 2024), a seven-judge Constitution Bench of the Supreme Court (CJI D.Y. Chandrachud + Justices A.S. Bopanna, M.M. Sundresh, P.S. Narasimha, J.B. Pardiwala, P.V. Sanjay Kumar, Manoj Misra) unanimously overruled the PV Narasimha Rao v. State (CBI/SPE) (1998) judgment. The 1998 judgment — by a 5-judge bench in a 3:2 majority — had controversially held that MPs/MLAs who accept bribes to vote a particular way in Parliament were protected from criminal prosecution under Article 105(2)/194(2) since the act of voting was within the House. The 2024 seven-judge bench held that no parliamentary privilege protects a legislator who accepts a bribe to vote or speak in Parliament. The Court held that corruption cannot be "part of the essential ingredients of the exercise of parliamentary functions" and laid down a "reasonable nexus" test — privilege attaches only where the act has a nexus to the collective functioning of the House AND is necessary to discharge essential duties.

This is a landmark clarification of the scope of Article 105(2) — one of the most important parliamentary privilege judgments since Keshav Singh (1965).

UPSC angle: Prelims — Sita Soren v. Union of India (2024), seven-judge bench; overruled PV Narasimha Rao (1998); bribery not covered by Article 105(2) privilege. Mains — how does the Sita Soren judgment redefine parliamentary privilege? Does it adequately address criminalization of politics?

Waqf (Amendment) Act — Money Bill Route and SC Stay (2024–2025)

The Waqf (Amendment) Bill, 2024 was referred to a Joint Parliamentary Committee (JPC) in August 2024 and enacted as the Waqf (Amendment) Act, 2025. One of the ongoing legal debates is whether any of its financial provisions could potentially be classified as a Money Bill to avoid Rajya Sabha scrutiny — a concern that has been raised since the Aadhaar Act controversy (2016–2018). The SC's ongoing scrutiny of Money Bill misuse, following Rojer Mathew v. South Indian Bank (13 November 2019, referred to a larger bench), remains relevant to parliamentary privilege over financial legislation.

On 15 September 2025, a Division Bench (CJI Gavai + Justice Masih) partially stayed the Act — specifically staying the five-year Islam-practice clause (Section 3(r)) and certain Section 3C provisions on the District Collector's powers; the removal of "Waqf by user" was upheld; the matter continues for full hearing.

UPSC angle: Prelims — Waqf Amendment Act 2025 (enacted); JPC referral August 2024; SC partial stay 15 September 2025 (Section 3(r) and Section 3C provisos stayed); Rojer Mathew (13 Nov 2019) on Money Bill misuse — larger bench reference pending. Mains — assess the constitutional consequences of classifying non-financial bills as Money Bills; examine how this erodes Rajya Sabha's privileges under Article 109; analyse the SC's partial stay in the context of minority rights and Waqf property.

Operation Sindoor — Parliament, Privilege, and Executive Accountability (May–July 2026)

Following the Indian Armed Forces' Operation Sindoor (cross-border counter-terrorism strikes, 7–10 May 2026), Parliament debated the government's conduct of the operation and the ceasefire process. The Lok Sabha Business Advisory Committee allocated 16 hours for a special discussion on Operation Sindoor during the Monsoon Session (July 2026). The debate was significant from the parliamentary privilege perspective — the government invoked the convention that matters of active national security, ongoing diplomatic negotiations, and intelligence assessments fall within the area where the executive has discretion to limit the information shared with Parliament, even within the privileged space of House debates. Opposition parties pressed for the PM's presence and a statement under the House's right to receive information (implicit in Article 75(3) collective responsibility). The episode illustrates the constitutional tension between Article 105(2) (absolute privilege of speech inside Parliament) and the executive's inherent power to withhold operationally sensitive information — a tension not resolved by any statute and managed only by constitutional convention.

UPSC angle (multi-paper): Prelims — Operation Sindoor: May 2026; Monsoon Session 2026 special discussion; 16-hour allocation. Mains — examine the limits of parliamentary privilege in holding the executive accountable on national security matters; is there a case for a Standing Committee on National Security in India (on the model of the UK Intelligence and Security Committee) with classified briefing rights as an institutional safeguard?