Article 105 – Powers, privileges and immunities of Parliament and its members

Article 105 of the Constitution of India deals with the powers, privileges and immunities of Parliament, its members and its committees. It protects freedom of speech within Parliament, grants immunity from court proceedings for parliamentary speech and votes, protects authorised publication of parliamentary proceedings, and provides the constitutional basis for other parliamentary privileges.

The provision is central to the independence and effective functioning of Parliament. At the same time, parliamentary privilege is not an unlimited personal immunity. It exists to protect the functioning of Parliament and remains subject to the Constitution.

Meaning of Article 105

Article 105 establishes constitutional protections that enable Parliament and its members to perform legislative functions freely and effectively.

The Article contains four important components:

• Article 105(1): Freedom of speech in Parliament.
• Article 105(2): Immunity from court proceedings for anything said or any vote given in Parliament or its committees, along with protection for authorised publication of parliamentary proceedings.
• Article 105(3): Other powers, privileges and immunities of the Houses, members and committees.
• Article 105(4): Extension of the relevant protections to certain persons who, by virtue of the Constitution, have the right to speak and participate in parliamentary proceedings.

Article 105 should therefore not be understood merely as a provision granting immunity to individual MPs. It protects the institutional functioning of Parliament as well as the legitimate parliamentary activities of its members.

Article 105(1): Freedom of Speech in Parliament

Article 105(1) provides that, subject to the Constitution and to the rules and standing orders regulating parliamentary procedure, there shall be freedom of speech in Parliament.

This freedom is essential to parliamentary debate. Members must be able to raise issues, criticise policies, debate legislation and express their views without fear that ordinary legal proceedings will be used to obstruct parliamentary deliberation.

However, the freedom is not completely unrestricted.

The constitutional text itself makes it subject to:

• the provisions of the Constitution; and
• the rules and standing orders regulating the procedure of Parliament.

Therefore, Article 105(1) does not mean that a member can say absolutely anything in Parliament without regard to constitutional provisions or parliamentary procedure.

Article 105(1) and Article 19(1)(a)

Article 105(1) should be distinguished from the general freedom of speech and expression under Article 19(1)(a).

Article 19(1)(a) is a fundamental right available subject to the restrictions permitted by Article 19(2).

Article 105(1), by contrast, is a specific constitutional protection concerning speech in Parliament.

The two provisions therefore operate in different constitutional contexts.

The parliamentary freedom is subject to the Constitution and the rules and standing orders governing parliamentary procedure.

Article 105(2): Immunity from Court Proceedings

Article 105(2) provides two important protections.

First, no Member of Parliament shall be liable to any proceedings in any court in respect of:

• anything said by the member in Parliament; or
• any vote given by the member in Parliament or any committee thereof.

Second, no person shall be liable to proceedings in any court in respect of the publication, by or under the authority of either House of Parliament, of:

• any report;
• paper;
• votes; or
• proceedings.

This provision is commonly described as parliamentary speech and vote immunity.

Immunity for Anything Said in Parliament

A member cannot ordinarily be sued or prosecuted in a court merely because of something the member said in Parliament, provided the statement falls within the scope of Article 105(2).

This protection is intended to ensure that members can participate freely in parliamentary debate without the constant fear of legal proceedings arising from their parliamentary speech.

The protection is connected to the parliamentary function and is not a general immunity for everything a Member of Parliament says outside Parliament.

Example

If an MP makes a statement during a parliamentary debate, the member cannot ordinarily be subjected to court proceedings in respect of that parliamentary statement merely because another person considers the statement defamatory or otherwise legally actionable.

The protection arises because the statement was made in Parliament.

Immunity for Votes Given in Parliament

Article 105(2) also protects a member from proceedings in any court in respect of a vote given by the member in Parliament or any committee thereof.

The protection is important because legislative voting must remain free from fear of subsequent court proceedings.

A member must be able to vote according to their judgment without the possibility that the vote itself becomes the basis for ordinary legal proceedings.

Scope of “in Respect of”

The expression “in respect of” is important when understanding Article 105(2).

The immunity protects parliamentary speech and voting, but it does not extend to every unlawful act that happens to be connected with a speech or vote.

The Supreme Court clarified this position in Sita Soren v. Union of India (2024).

A seven-judge Constitution Bench held that a Member of Parliament or a member of a State Legislature cannot claim constitutional immunity from prosecution for bribery connected with a speech or vote. The Court overruled the earlier majority position in P.V. Narasimha Rao v. State (CBI/SPE) on this issue.

The Court held that bribery is not an act necessary for the legislative function of speaking or voting and therefore is not protected by Article 105(2).

This is an important current constitutional position.

Sita Soren v. Union of India

The decision in Sita Soren v. Union of India (2024) is directly relevant to the scope of Article 105(2).

The Supreme Court held that:

• parliamentary privilege is intended to facilitate legislative functioning;
• bribery is not essential to the exercise of the legislative function;
• an MP cannot claim Article 105(2) immunity from prosecution for accepting a bribe in connection with a vote or speech; and
• criminal prosecution and parliamentary disciplinary proceedings operate in distinct spheres.

The Court also clarified that the offence of bribery is not dependent upon whether the legislator ultimately performs the promised act.

Therefore, Article 105(2) protects the speech or vote itself, not an independent criminal act such as bribery merely because it is connected with that speech or vote.

Publication of Parliamentary Proceedings

Article 105(2) also protects the publication, by or under the authority of either House of Parliament, of:

• reports;
• papers;
• votes; and
• proceedings.

The protection extends to the person responsible for such authorised publication.

The purpose is to ensure that official parliamentary proceedings can be published without exposing those responsible for the publication to court proceedings merely because of the contents of the authorised parliamentary material.

The constitutional protection therefore applies to publication by or under the authority of the House.

Article 105(3): Other Powers, Privileges and Immunities

Article 105(3) deals with parliamentary privileges other than those specifically mentioned in clauses (1) and (2).

It provides that the other powers, privileges and immunities of:

• each House of Parliament;
• the members of each House; and
• the committees of each House

shall be such as may from time to time be defined by Parliament by law.

This means that Parliament has constitutional authority to define its privileges through legislation.

What Happens Until Parliament Makes a Law?

Article 105(3) contains an important constitutional default.

Until Parliament defines these privileges by law, the powers, privileges and immunities are those of the relevant House, its members and its committees immediately before the commencement of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

The Forty-fourth Amendment provision came into force on 20 June 1979.

Therefore, the current constitutional text does not simply refer to the privileges of the House of Commons or use an uncodified reference to British parliamentary privilege. It provides a specific historical constitutional reference point pending parliamentary legislation.

Has Parliament Codified All Parliamentary Privileges?

Parliament has not enacted a comprehensive law defining all the privileges contemplated by Article 105(3).

Consequently, the constitutional framework continues to operate with the statutory law made by Parliament where applicable, together with the privileges preserved by Article 105(3), parliamentary rules and established parliamentary practice.

This is why parliamentary privilege remains an important area of constitutional law involving both parliamentary practice and judicial interpretation.

Collective and Individual Parliamentary Privileges

Parliamentary privileges may broadly be understood in two dimensions.

Collective privileges

These belong to the House as a whole.

They are intended to protect the authority, dignity and functioning of Parliament.

Examples include the House’s ability to regulate its own proceedings and deal with breaches of its privileges.

Individual privileges

These attach to members in their parliamentary capacity.

Examples include:

• freedom of speech in Parliament;
• immunity in respect of parliamentary speech and votes under Article 105(2).

However, individual privilege is not simply a personal benefit disconnected from parliamentary functioning.

The Supreme Court has emphasised that parliamentary privilege must be connected with the effective functioning of the legislative institution.

Parliamentary Privilege and Judicial Review

Parliamentary privilege does not place every parliamentary action completely beyond judicial scrutiny.

The Supreme Court has recognised that constitutional courts can examine whether a claim of parliamentary privilege conforms to the Constitution.

In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, the Supreme Court considered the relationship between parliamentary privilege and judicial review.

The existence of parliamentary privilege therefore does not create an entirely separate constitutional sphere immune from all judicial scrutiny.

The Constitution remains supreme.

Privilege vs Immunity

The terms “privilege” and “immunity” are related but should not be treated as identical.

Privilege

A privilege is a special power, right or protection necessary for the functioning of Parliament, its Houses, members or committees.

Immunity

An immunity protects a person or institution from a particular form of legal liability or proceeding.

Article 105 expressly uses the language of powers, privileges and immunities, reflecting the broader nature of the constitutional protection.

Article 105(4): Persons Other Than Members

Article 105(4) extends the provisions of Article 105(1), (2) and (3) to persons who, by virtue of the Constitution, have the right to:

• speak in a House of Parliament; and
• otherwise take part in its proceedings,

or to do so in a committee of Parliament.

The provisions apply to such persons as they apply to members of Parliament.

This is an important provision because certain persons may constitutionally have a right to participate in parliamentary proceedings even though they are not members of the particular House.

Who May Fall Within Article 105(4)?

The classic example is the Attorney-General for India, who has the constitutional right under Article 88 to speak in, and otherwise take part in the proceedings of, either House of Parliament and any joint sitting and committee of Parliament, but does not have a right to vote by virtue of that Article.

Article 105(4) ensures that the relevant parliamentary protections extend to persons who have such constitutionally recognised participation rights.

Article 105 and Article 88

Article 88 provides that every Minister and the Attorney-General for India have the right to speak in and otherwise take part in the proceedings of either House, a joint sitting, and any committee of Parliament of which they may be named a member, but they do not have a right to vote merely by virtue of that Article.

Article 105(4) complements Article 88 by extending the relevant parliamentary privileges to persons who have such constitutional participation rights.

Article 105 and Parliamentary Committees

Article 105 is not confined to proceedings on the floor of either House.

Article 105(2) expressly refers to:

• votes given in a committee of Parliament; and
• anything said in a committee.

The privileges of parliamentary committees are also expressly recognised under Article 105(3).

Therefore, parliamentary privilege extends to relevant committee proceedings as well as proceedings in the House.

Article 105 and Contempt or Breach of Privilege

Parliamentary privilege includes the ability of the Houses to protect their proceedings and authority from conduct that amounts to a breach of privilege or contempt of the House, subject to the Constitution.

The House may exercise its privilege jurisdiction in appropriate cases.

However, this power is not equivalent to an unrestricted power to punish any person for any reason. The exercise of parliamentary privilege must remain within constitutional limits.

Article 105 and Freedom from Court Proceedings

Article 105(2) provides a specific constitutional protection against proceedings in a court.

This should not be confused with a general immunity from all legal consequences.

For example, the protection does not mean that an MP is immune from criminal prosecution for an independent offence merely because that offence has some connection with parliamentary activity.

The Sita Soren judgment is particularly important on this point.

Important Distinctions

Freedom of speech vs immunity from court proceedings

Article 105(1) provides freedom of speech in Parliament.

Article 105(2) separately provides immunity from court proceedings in respect of parliamentary speech and votes.

The two clauses are connected but serve different functions.

Parliamentary speech vs speech outside Parliament

Article 105 protects relevant speech made in Parliament.

It does not provide a general immunity for statements made by an MP outside parliamentary proceedings.

Vote vs conduct surrounding the vote

Article 105(2) protects a vote given in Parliament.

It does not automatically immunise every act connected with that vote.

After Sita Soren, bribery connected with a parliamentary vote is not protected by Article 105(2).

Parliamentary privilege vs personal privilege

Parliamentary privileges are fundamentally connected with the functioning of Parliament.

They should not be treated merely as personal benefits available to MPs independently of parliamentary functions.

Privilege vs absolute immunity

Parliamentary privilege does not mean that everything done by Parliament or its members is beyond judicial review.

The Constitution remains the controlling framework.

Article 105 vs Article 194

Article 105 deals with Parliament and its members and committees.

Article 194 contains corresponding provisions for State Legislatures and their members and committees.

The two Articles are broadly parallel but apply to different legislative institutions.

Common Confusions

Can an MP be sued for something said in Parliament?

Article 105(2) provides that a Member of Parliament shall not be liable to proceedings in any court in respect of anything said by the member in Parliament.

This protection is specific to parliamentary speech and should not be extended to statements made outside Parliament.

Can an MP be prosecuted for accepting a bribe for a parliamentary vote?

Yes.

The Supreme Court in Sita Soren v. Union of India (2024) held that Article 105(2) does not provide immunity from prosecution for bribery connected with a parliamentary vote or speech.

Does parliamentary privilege make MPs completely immune from criminal law?

No.

Article 105 provides specific constitutional protections connected with parliamentary functioning. It does not place MPs above the law for independent criminal conduct.

Can Parliament’s privileges be defined by Parliament through legislation?

Yes.

Article 105(3) expressly permits Parliament to define the powers, privileges and immunities of the Houses, their members and committees by law.

What privileges apply if Parliament has not defined them by law?

Article 105(3) preserves the relevant powers, privileges and immunities as they stood immediately before the commencement of section 15 of the Forty-fourth Amendment Act, 1978, until Parliament makes a law defining them.

Does Article 105 protect parliamentary committees?

Yes.

Article 105 expressly refers to committees in clauses (2) and (3).

Can courts examine parliamentary privilege?

Yes, in appropriate constitutional circumstances.

Parliamentary privilege is subject to the Constitution, and the Supreme Court has recognised judicial review of privilege claims where constitutional limits are implicated.

Does an MP have privilege for statements made at a press conference?

No, not merely because the person is an MP.

Article 105 concerns speech in Parliament and does not create a general immunity for statements made outside parliamentary proceedings.

Does Article 105 give the Speaker or Chairman unlimited power to punish anyone?

No.

Parliamentary privilege must be exercised within the constitutional framework.

Article at a Glance

Point	Position
Article	Article 105
Subject	Powers, privileges and immunities of Parliament and its members
Clause (1)	Freedom of speech in Parliament
Limitation under clause (1)	Subject to Constitution, rules and standing orders
Clause (2)	Immunity for parliamentary speech and votes
Committee protection	Speech and votes in parliamentary committees covered
Publication protection	Authorised publication of reports, papers, votes and proceedings
Clause (3)	Other privileges of Houses, members and committees
Power to define privileges	Parliament may define them by law
Interim position	Privileges as existing immediately before commencement of s.15 of 44th Amendment Act, 1978
Clause (4)	Extends relevant protections to constitutionally entitled non-members
Important related Article	Article 194 for State Legislatures
Important case	Sita Soren v. Union of India (2024)
Bribery immunity	Not protected under Article 105(2)
Judicial review	Parliamentary privilege remains subject to the Constitution

Quick Revision

• Article 105 deals with the powers, privileges and immunities of Parliament, its members and committees.
• Article 105(1): provides freedom of speech in Parliament.
• Parliamentary speech is subject to the Constitution, rules and standing orders.
• Article 105(2): protects an MP from court proceedings in respect of anything said or any vote given in Parliament or a parliamentary committee.
• It also protects authorised publication by or under the authority of either House of reports, papers, votes and proceedings.
• Article 105(3): Parliament may define other powers, privileges and immunities by law.
• Until Parliament legislates comprehensively, the constitutional default preserves the relevant privileges as they existed immediately before the commencement of section 15 of the Forty-fourth Amendment Act, 1978.
• Article 105(4): extends the relevant protections to persons who have a constitutional right to speak and participate in parliamentary proceedings.
• Article 88 is relevant to persons such as the Attorney-General who have a constitutional right to participate without a corresponding right to vote merely by virtue of that Article.
• Parliamentary privilege is connected with the effective functioning of Parliament and is not merely a personal benefit of MPs.
• Parliamentary privilege is not absolute and remains subject to the Constitution.
• In Sita Soren v. Union of India (2024), the Supreme Court held that bribery connected with a parliamentary vote or speech is not protected by Article 105(2).
• Article 194 contains the corresponding provision for State Legislatures.

Conclusion

Article 105 is a foundational provision for the independence and effective functioning of Parliament. It protects parliamentary speech and voting, safeguards authorised parliamentary publications, and provides the constitutional basis for the broader privileges of Houses, members and committees. These protections enable Parliament to deliberate freely, but they do not place parliamentary actors above the Constitution or the law. The modern constitutional position, particularly after Sita Soren v. Union of India (2024), makes clear that parliamentary privilege protects legitimate legislative functions and cannot be invoked as immunity for independent criminal conduct such as bribery.