In re Keshav Singh case:

The legislative assembly of Uttar Pradesh had committed one Keshav Singh, who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his committal as being in breach of his fundamental rights. A division bench of High Court sitting at Lucknow gave notice to the Government counsel and on the appointed day, proceeded to hear the application for bail. At that stage, the government counsel did not appear. The division bench heard the application and ordered release of Keshav Singh on interm bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High court and the two Judges of the High court in entertaining the petition and granting bail had committed contempt of the legislative assembly. The assembly passed a resolution that all of them , including the two High Court judges, be produced before it in custody .The High court judges the High court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assembly’s resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the judges and the advocate to appear before the House and offer their explanation .it was against this backdrop that the president made reference under Article 143(1) of the constitution, seeking opinion mainly as to the constitutional relationship between High Court and the State Legislature in matters of the powers and privileges of the latter.

The court dealt with the main privileges claimed by the House of Common as under:

“Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the commons to the king at the commencement of the parliament. It is remarkable that notwithstanding the repeated recognition of this privilege, the crown and the commons were not always agreed upon its limits. this privilege received final statutory recognition after the revolution of 1688.By the 9th Article of the Bill of Rights, it was declared “that the Freedom of speech , and debates or proceedings in the Parliament ought not to be impeached or questioned in any court or place out of the parliament, May’s Parliament Practice,p.52.”

Amongst the other privileges are the right to exclude strangers, the right to control publication of debates and proceeding, the right to exclusive cognizance of proceedings in the Parliament , the right of each House to be sole judge of the law fullness of its own proceedings ,and the right implied to punish its own Members for their conduct in the Parliament ibid,p52-53.

Beside these privileges, both the House of the Parliament were possessed of the privilege of freedom from arrest or molestation, and from being impleaded , which was claimed by the commons on the ground of prescription.

Clause (2) is in two parts. The first part confers an immunity upon a Member of the Parliament in respect of anything said or any vote given by him in the parliament in respect of anything said or any vote given by him in the parliament or any committee thereof; the immunity protects him from being proceeded against in a court of law The second part confers an immunity upon the person who publishes such proceedings by or under the authority of either House of the parliament; the publication may be of any report, paper ,vote or proceedings. This clause is aimed to provide the Members of the Parliament an unrestricted freedom of speech and expression within the House.

The interpretation of clause (2)arose most prominently in P.V Narasimha’s Case. A charge sheet was field against shri P.V.Narasimha Rao and some other members other Members of the parliament and others under section 120B IPC and sections 7,12 (13) 2 read with section 13(1)(d)(iii)of the prevention of corruption Act, 1988.The charges was that a criminal conspiracy was entered into to vote against the motion of ‘no confidence ‘ moved against Shri P.V .Narasimha Rao’s government in Lok Sabha. Both the bribe givers and bribe takers were chargesheeted.

On the question of interpretation of clause (2) of Article 105, there was a division of opinion. two judges,S.C. Agrawal andA.S.Anand ,J.J.Held that “a member of the parliament does not enjoyed immunity under Article 105 (2)or Article 105(3) of the constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote hand ,S.P.Barucha and Rajendra Babu, j.j. held that other hand S.P.Barucha and Rajendra Babu,J.J.held that while bribe-givers(who are the members of the parliament)cannot invoke the immunity conferred by clause (2) of Article 105,the bribe-takers(members of the parliament) can invoke that immunity if they have actual spoken or voted in the house pursuant to the bribe taken by them. If, however, a Member of the parliament take a bribe for speaking or voting in the House in a Particular manner, but does not so speak or vote, the immunity cannot be invoked by him. The conclusion follows the construction of the words ‘in respect of” occurring in the said clause. The learned judges held that the said words were of wide amplitude and , therefore, the integral connection between eh bribe-taking and the vote in the House cannot be dissected or separated. G.N Ray, J. agreed with Barucha and Rajendra Babu, J.J on this question.

Article 105(3) underwent a change in terms of Section 15 of the A constitution (44 th Amendment) Act, 1978. In the Article 105(3), the words “ shall be those of the House of Commons of the Parliament of the United Kingdom, and its members and committees at the commencement of this Constitution” were substituted by the words “ shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act 1978.”

In Raja Ram pal case (2007) the question was whether in exercise of the power , privileges and immunities as contained in Article 105, are the Houses of the Parliament competent to expel their respective Members from membership of the House. If such a power exist, is it subject to judial review, and if so, the scope of such judicial review, The Raja Ram Pal case considered the powers of the Parliament to expel their members as eleven members from both the houses were unseated as they were caught on camera taking bribes from journalists for raising Houses of the Parliament has acted within their juridisdiction.

In Raja Ram Pal case (2007), it was the petitioner’s contention that the Houses of the parliament has no power of expulsion of a sitting member. They pleaded that the petitioners could not be debarred from membership of the House by or under the impugned notifications pursuant to proceedings consequent upon the media reports inasmuch as substantive and adjectival law had been disregarded and the Constitutional inhibition placed on the exercise of power of debarment had been defeated.

A Constitution bench of five judges observed that in the constitutional scheme that has been adopted in India, the Legislatures play a significant role in pursuit of the goals set before the nation and command the position of grandeur and majesty. The Legislatures undoubtedly have plenary powers but such powers are controlled by the basic concepts of the written constitution and can be exercised within the legislative field allotted to their respective jurisdiction under the Seventh Schedule. They have the plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution. But, the basis of that power is the Constitution itself. Expulsion is related to the conduct of the member that lowers the dignity of the House, which may not have been necessarily known at the time of election. It is not a capricious exercise of the House, but an action to protect its dignity before the people of the country. This is also an integral aspect of our democratic set-up Thus, the Court held that the power of expulsion does not bar a member from standing for re-election or the constituency from electing that member once again.

The Parliament as not yet catalogued the powers, privileges and immunities of each House of the Parliament and of their members and committees. Thus the second part of Article 105(3) shall come to an end as soon as the Parliament defined by law its power, privileges and immunities.

Clause (4) read thus:

“(4) The provision of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Parliament or any committee there of as they apply in relation to the members of the Parliament.