It all began way back in 1541 when the Speaker of the House of Commons for the first time included freedom of speech as one of the natural privileges intrinsic to the very existence of the House in his formal petition to the King, before the commencement of the session of Parliament. Later, this intrinsic and inalienable right of free speech in Parliament and even beyond was claimed from every monarch at the beginning of each session.

Even Queen Elizabeth-I had to bow before this hallowed and consecrated privilege. During her reign, she summoned members of the House of Commons who had criticised her on the question of royal succession. She forbade them from discussing such matters. The Commons decided to debate her reproach. Elizabeth-I was livid. This time, she summoned the Speaker and ordered the end of the debate. This had no effect on the House of Commons and the omnipotent Queen had to finally back down in the face of the privilege of free speech accorded to the House of Commons. Article nine of the Bill of Rights in 1689 finally gave statutory expression to this privilege of freedom of speech in England. The objective of the foregoing history is to illustrate how deeply entrenched such privileges are in democratic practice.

Few constitutional provisions are as cardinal to democracy as the near-absolute freedom of speech in Parliament. Given the recent articulation by eminent constitutional functionaries as to whether “free fall of information” in the name of free speech in the House is permissible or even desirable, a comprehensive debate regarding the extent of freedom of speech of MPs both inside and outside Parliament and to delineate clearly the exact contours of this parliamentary privilege become eminently germane.

I have therefore already given four consecutive adjournment motions during this session to the Lok Sabha Speaker to discuss the nature of freedom of speech accorded to members of Parliament under Article 105 of the Constitution. The questions are threefold: first, can a member say anything in the House, subject to the rules of the House; second, is a member supposed to provide detailed evidence before exercising his privilege; and third, does the right of free speech on issues of public interest extend outside Parliament, too, unfettered by any legal ring-fencing?

Articles 105 (1) and (2) specifically provide for freedom of speech and immunity to members from “any proceedings in any court in respect of anything said or any vote given” in Parliament. Crucially, the Supreme Court has held that the word “anything” is of the widest import and is equivalent to “everything” (vide Tej Kiran Jain v. N. Sanjiva Reddy. A.I.R. 1970 S.C. 1573). Moreover, Article 105 (4) provides uncodified privileges to MPs that are on a par with those exercised by members of the British Parliament.

During the Constituent Assembly debates, the founding fathers were in agreement regarding the wide and expansive nature of the freedom of speech in Parliament. The Constituent Assembly adopted Draft Article 85 as amended on May 19, 1949. Draft Article 85 subsequently became Article 105 of the Constitution.

That the framers envisaged an unfettered right to speech is illustrated by the eminent jurist Alladi Krishnaswami Ayyar noting that the members of the House of Commons enjoyed the “widest privileges” which should be adopted. There was a clear intent to give privileges the widest amplitude. In fact, another member, Naziruddin Ahmad, iterated the right of a member to speak “anything” in the House, subject of course to the rules of procedure made by the House itself. Lakshmi Kanta Maitra, member of the Constituent Assembly from West Bengal, put it succinctly: “Subject to the permission from the Speaker, you can make any speech.”Freedom of speech in Parliament extends even to making allegations and statements that at the time of making them, the member believes them to be true or at least worthy of investigation. This is fundamental to the proper functioning of Parliament. For instance, such allegations could relate to a violation of fundamental rights by the police, abuse of power by a powerful person, fraud by financial businesses, and so on.

Members, in lieu of their privilege of freedom of speech, are allowed to make these statements without having to present any detailed evidence in support (Griffith and Ryle, Parliament: Functions, Practice, and Procedures). Erskine May, the greatest authoritative treatise on parliamentary procedure, also called the “Parliamentary Bible”, states that “a member may state whatever they think fit in debate, however offensive it may be to the feelings, or injurious to the character, of individuals”.

Insofar as speech or communication outside the house is concerned, I had argued in a matter before the Delhi High Court that the uncodified privileges provided by Article 105 (4) extend to letters written by members of Parliament to ministers of the Union and other people and qualify to be treated as privileged communication. Similarly, there is case law in the UK and other democracies that holds that public utterances of MPs on matters of public interest are immune from any legal proceedings.

Without these cast-iron guarantees freedom of expression of MPs would be redundant. That was not the intent of our Constitution makers.

(The author, a Congress MP, is a lawyer and a former Union information and broadcasting minister)