Posted on: January 4, 2021 Posted by: admin Comments: 0

Author: Akhouri Sankalp, Student at Lloyd Law College, Greater Noida.


The conflict between parliamentary privilege and freedom to speech is very old. Both articles of the constitution are equally important. This issue has many times lead to the clash between Courts and the parliament also. This article proposes a general interpretation of the conflict between the two constitutional principles of parliamentary privilege and freedom of speech. The article deals with various case laws related to the conflict between parliamentary privilege. Future the article states that whether any corporation or any company can enjoy the fundamental right or not. It deals with the 42nd Amendment act and how parliament redefined the meaning of Article 194(3) and 105(3) of the Indian constitution. How parliament never wanted to codify the privileges law and how after 42nd amendment parliament made parliamentary privileges was a dog law. We tend to see the Emergency as a dark period in India’s Constitutional history. While recollecting the Emergency, a special sense of scorn is typically reserved for the 42nd Amendment, infamous for the crippling blows it alleged to inflict on Constitutional liberties. With this background deeply entrenched in our collective memory, if a student of Constitutional law were to earnestly claim that the 42nd Constitutional Amendment passed during the Emergency was probably one among the best boons to the liberty of the press in India, he’s apt to be seen with the suspicion reserved for the likes of somebody calling himself a teapot. Notwithstanding the initially perceived implausibility of such a claim, I will be making it here The author argues that the combined effect of the 42nd and 44th Constitutional Amendments was to lower the status of parliamentary privileges from being part of the original constitution, to being introduced into the Constitution through an amendment. This would make these privileges subject to basic structure review and, by implication, subject to Art. 19(1)(a).


In India press doesn’t have any different right than that of those citizens. Both take their right from Article 19(1)(a) of the Indian constitution. Initially, there was a conflict that any corporation or any company can enjoy the rights conferred under Part III of the constitution or not. But after the [1]Thomas v. Collins,. Supreme court of India held that thought companies are not a citizen of India so they can’t enjoy the right conferred under part III of the constitution. But the individual manager or employee of that company can claim his right in case of any violation. In any democratic country press should be allowed to publish any proceeding of the parliament which are of public importance, Honorable Supreme court has also recognized the value of Public interest in the Yashwant Sinha vs CBI case. In the above judgment, Justice KM Joesph Noted the importance of media in a democratic country “ The reach of the media, in the present times of 24-hour channels, is to almost ever nook and corner of the world. Further, a sizable amount of individuals believe as correct that which appears in media, print or electronic…… ” Also during a time of RTI people has the proper to understand what their elected representatives are doing inside the parliament and the state legislative. Freedom of Press in our country is available only to the extent it is implicit in the freedom of speech and expression guaranteed by Art. 19(1)(a) of the Constitution to all or anycitizens subject to reasonable restrictions in respect of matters enumerated in CI.(2) thereof. This tacit conferment raises a question:

  1. if the freedom of expression is confined to the expression of one’s own ideas no freedom at all can be claimed, in respect of the publication of the views of other persons without the permission of such others,

In answer to his right to obtain information, the petitioner, in that case, relied upon a certain observation made in Srinivas v. State of Madras including the proper to print material borrowed from another or under the direction of another within the freedom of speech and expression guaranteed by Art. 19(1)(a). These do not help us as they imply the existence of permission of such other person.


In the above case, Supreme Court applies the doctrine of Harmonius construction between the two Articles of the constitution that is Article 19(1)(a) and Article 105(3) and Article 194(3). In the above case, the editor published the whole debate of the state legislative assembly of Bihar despite the order of the Bihar legislative assembly’s speaker to expunge some portion of the debate. The editor was held for the breach of privilege of the assembly. The editor moved to the Supreme Court citing the breach of his fundamental right Article 19(1)(a) Right to speech and expression which gave him the right to publish fair reporting the assembly debates. The Supreme Court held that its power of judicial review of legislation, applicable to ordinary law, could not be invoked to impugn Art. 194(3), which is part of the Constitution. the result that the freedom of the press under Art. 19(1)(a) was subservient to and should yield to the Privileges under Art. 194(3). The court said that if one day the legislature codifies its privileges one day then it will be subjected to article 13 of the Indian constitution and will come under judicial scrutiny.


This case is an example of one of the most dangerous tussles between the assembly and the supreme court. An editor Keshav Singh was booked for the breach of parliamentary privilege. And a warrant was issued against him by the speaker. After that, his Article 20,21 was also violated because he was not brought before the magistrate within 24 hr. He then approached the High court by filing a writ of Habus corpus. The high court provided him bail. Then the Parliament held the judges of the Allahabad high court and advocates appearing in that case guilty for the breach of parliamentary privilege and issued an arrest warrant against all of them. Then the judges approached the Allahabad high court. The court quashed the warrant against all the judges citing the reason that judges cannot be held for what they did in their judicial capacity. Finally, the president interfered in the matter. The supremacy of the Constitution, interpreted finally by the courts, is one among the ways during which harmonious working of the Constitution is secured, and therefore the so-called “dualism”, which must give rise to constitutional conflict, is avoided. Whatever could also be the position under the British Constitution in 1950, there’s no room for contending that such “dualism” exists under our written Constitution. Any plan to introduce the discarded dualism into our Constitution will increase confusion and supply a tract of friction between the various organs of the State. The so-called dualism also implies an absence of remedy for the citizen, albeit he’s imprisoned for having done something which couldn’t possibly constitute contempt of a House of Legislature, whenever the Speaker of a House issues a general warrant and thus precludes the courts from scrutinizing the grounds upon which imprisonment was ordered. Finally, in the Keshav Singh case, it was held that the court will have limited power in case of parliamentary privilege and all they can do is to check whether the house of commons had those privilege or not,


After the 42nd amendment act article 105(3) and Article 194(3) were changed drastically. The reference to the house of commons was removed and instead of that the lawmakers added: “Shall be such as may from time to time be defined by the parliament”. The amendment made the privilege a dog law and more dangerous. Now the parliament or the state legislative assembly can book any person under an unprecedented privilege and claim that its privilege and held him of contempt.


No government till date has dared to codify parliamentary privileges because the day parliamentary privilege will be codified it will come under the ambit of Article 13 and under the scrutiny of the Supreme court and high court . Article 105(3) and 194(3) which we see now does not derive its origin from the 1950 constitution but it divides its origin by the 42nd and 44th amendment act. And in [2]Keshwananda Bharti Vs State of Kerala Supreme court told that any constitutional amendment should not be violative of the basic structure of the constitution. So if the amended article105(3) and 194 (3) is in violation of Article 19(1)(a) which was declared as the basic structure in [3]I.R. Coelho v State of Tamil Nadu by the honorable supreme court then the whole existence of Article 105(3) and 194(3) can be questioned for its constitutionality.


[1] Thomas v. Collins, (1944) 323 U.S. 516, p. 545

[2] Kesavananda Bharati vs. Union of India, AIR 1973 SC 1461, (Supreme Court of India)

[3] I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1 (Supreme Court of India)

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