Parliamentary privileges i.e. exceptional right or advantage are granted to the members of legislatures all over the world. Thus in most of the democratic countries, the legislatures and their members enjoy certain privileges so as to function effectively. Privilege though part of the law of the land, is to a certain extent an exemption from the ordinary law. It would not be wrong to say that privilege is to Parliament what prerogative is to the Crown. Just as prerogatives can be exercised by the Crown without help or hindrance from Parliament or the judges, so privileges can be exercised by the House of the Parliament without help or hindrance from the Judges.
Prerogative is the authority of the Crown whereas privilege is the discretionary authority of each House of Parliament. Privilege is an ancillary power which is essential to maintain the authority of the legislature, and the functions, privileges and disciplinary powers of a legislative body are closely connected. However, the distinction between privileges and functions is not always clear, and it is convenient to retain the term ‘privilege1 to signify certain
discharge its functions if it had no power to punish offender, to impose disciplinary regulations upon its members, or to enforce obedience to its commands. Thus, necessity is the justification for the privileges of Parliament. India is one of those rare examples in history where representative institutions were made available by a foreign government by slow degrees and thus evolved gradually. As in other parliamentary documents, the privileges of legislative bodies in India have been closely connected with the stage of development of these institutions.
The original of Parliamentary privileges in India can be traced as far back as 1833, when a fourth member was added to the Council of the governor-general in accordance with the Charter Act of 1833, and a new type of legislative machinery came into existence. This laid the foundation of an institution which ultimately, by a process of evolution, grew into a full-fledged law-making body. Circumstances and opportunities which enable a legislator to perform his job of lawmaking came to exist, though in embryonic form. The composition of the legislative council – if we can call it by that name was peculiar in that all but the fourth member was mainly and primarily members of the executive. The fourth member was in a disadvantageous position viz-a-viz the other members for the performance of his job; because, for the purpose of making law and regulations, the other members did not have any express need for the usual privileges of a legislator, whereas the position of the fourth members was different. He had no legal right to be present or to vote in the meetings held for purposes other than for making laws and regulations.
The Government of India Act. 1909 for the first time provided for an indirect election to the Legislative Council. With the coming of the representatives of the people in the legislature, the official aversion to the privileges of the legislature was diluted. By this time, freedom of speech also had struck root. However, the government was by no means prepared to accept legislative privileges in principle, much less grant them. In the absence of official support, the privileges grew as a convention which was nursed by the independent attitude of Councilors.
Unlike the Government of India Act, 1919, the Government of India Act, 1935, provided that there should be freedom of speech in the legislature, that no member should be liable for anything said or the vote given by him in the legislature or in any committee thereof and that no person should be liable in respect of the publication or under the authority of the legislature, of any report, paper, vote or proceeding.
The position regarding the privileges of Indian legislatures changed substantially with the advent of freedom and the promulgation of the new Constitution. No doubt, the Constitution does not describe exhaustively the ‘powers’ privileges and immunities’ of the Parliament of India or the State legislature, but it expressly mentions some of these privileges and in respect of others the position of Parliament is similar to that of the House of Commons as a model, for certain undefined privileges was desirable in that India was new to democracy and conventions evolved by the British Parliament after a long experience could be of much help to it till its own constitutional practices had crystallized into a sufficiently authoritative body of precedents.
Today, some of the privileges of Parliament, and of its members and committees, are specified in the Constitution and there are certain statutes and the rules of procedure of the House; others continue to be based on the precedents of the House of Commons. These privileges are available to all the legislatures in the states as well. The main articles of the Constitution of India dealing with the privileges of Parliament are 105 and 122 and the corresponding articles for the states are 194 and 212. Article 105 (1) of the Constitution of India provides that, subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament, there would be freedom of speech in the Parliament. Clause 2 of the Article provides that no member of Parliament would be liable to any proceedings against him in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and that no person would be liable in respect of the publication of any report, paper votes or proceedings by or under the authority or either House of Parliament. Clause 3 ordains that in other respects the powers, privileges and immunities of each House of Parliament, and of the members and committees thereof, would be such as may from time to time be defined by Parliament by law and until so defined, would 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 of India;, According to a clause of this article, the provisions of clauses 1,2, and 3 would apply to persons who by virtue of the Constitution have the right to speak in or take part in the proceedings of a House of Parliament or a committee thereof, as they apply to the members of Parliament.