The basis of Parliamentary Privileges can be found in Articles 105 and 194 in the Indian Constitution. Article 105 talks of the Parliamentary Privileges of the Member of Parliaments while the corresponding provision for the Members of Legislative Assemblies can be found under Article 194. Article 105(2) and Article 194(2) grant immunity from proceedings in respect of “anything said or vote given” to the Parliament and the State Legislature respectively.
Before Section 15 of the 44th Amendment Act, 1978 came into force, the powers and privileges were defined as clause (3) of Article 105 provided that “in other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as 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 the Constitution i.e. on the 26th January, 1950”. The genesis of the British Parliament’s power to punish for breach of privilege can be found in the seminal work of Sir Thomas Erskine May titled ‘Parliamentary Practice’, wherein he defined “contempt of parliament’ as “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, even though there is no precedent of the offence.” The Joint Committee on Parliamentary Privilege of the House of Lords and House of Commons in its report on the session of 2013-14 endorsed the view taken by Supreme Court of Canada in Canada (House of Commons) v. Vaid wherein it restricted the scope of Parliamentary Privileges using the ‘doctrine of necessity’ and held as under:
“If the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity—the foundation of all parliamentary privilege. In such a case, in order to sustain a claim of privilege, the assembly … must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency.”
Coming back to Article 105(5), it clearly stipulates that there shall be a law which shall regulate these privileges and only till that time when no such law is in force, the same shall be those as defined by the members and committees before the 44th Amendment Act of 1978. No such law has been framed till date. This does not seem to be a case of lethargy but a concerted effort on the part of the elected representatives to purposely not restrict the scope of their privileges to the necessary acts which are essential in carrying out the functions of the Parliament. This proposition is further strengthened by the report of the Committee of Privileges of the Lok Sabha in 1994 when it undertook a study of various opinions on the subject. The Committee was “inclined to hold that preponderance of opinion is against codification of parliamentary privileges” and recommended that it was not advisable to do so.
The question then arises, are the extraordinary powers to impose penal punishments to be left to the whims and fancies of legislatures? The recent cases of two journalists being imprisoned in Karnataka for alleged defamatory articles against Member of Legislative Assemblies and a prominent political figure being sent a notice for purposely misspelling the name of a cabinet minister, both for breach of privilege does not seem to suggest that the power and procedure of the Indian Parliament to protect its’ privileges are in any way guided by the powers and procedures of the British Parliament which has now adopted the ‘Doctrine of Necessity’ whereby only those acts are protected which are so closely related to the functioning of the Parliament that outside interference would undermine its’ autonomy. It is hard to understand how a political war of words between members of two rival political parties can be brought within the ambit of ‘breach of privilege’.
The other fundamental flaw with not enacting a law on this subject is that it is direct violation of Part III of the Indian Constitution, which has been held inviolable by the Supreme Court in a catena of cases, as the Parliament and State Legislative Assemblies while exercising their power to punish for contempt can imprison a person and also impose a fine, without a due procedure established by law, which has to be reasonable and fair as per the Supreme Court’s judgment in Maneka Gandhi v Union of India.
Vivek Punia, Advocate, Prosoll law Inc.
 Erskine May: Parliamentary Practice, 24th edition.
  1 S.C.R. 667
 (1978) 2 S.C.R. 621