Political Philosophy
Until So Defined: The Privileges the Constitution Declined to State, and the Reference It Left in Their Place
26 October 2026 · 19 min read
A constitution that creates a legislature has to settle more than how it is composed and how it votes. A deliberative body that can be obstructed from outside needs some power to act against people who are not its members — to require their attendance, to compel the production of papers, to punish an interference with its proceedings. Those powers are coercive and they operate on strangers, which makes them the part of a legislature's apparatus most in need of being written down, because the people against whom they are used have no voice in the body that uses them.
The Constitution of India writes down part of this and declines to write down the rest. Articles 105 and 194 state three immunities in terms. For everything beyond them the articles do not state a power; they refer to one. The reference has now stood for the whole life of the Constitution, and what it refers to is not an Indian instrument at all.
What the article states, and where it stops stating
Article 105 has four clauses, and the division of labour between them is the whole subject.
Clause (1): "Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament."
Clause (2): "No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings."
Those two clauses are complete. They identify who is protected, against what, and in respect of which acts, and a court asked to apply them has text to apply. Each of them is also an immunity — something that stops a proceeding. Neither confers a power on a House to do anything to anybody.
Clause (3) is where the powers are, and it does not contain any: "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 may from time to time be defined by Parliament by law, and, until so defined, 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."
Clause (4) extends all three clauses to persons who, by virtue of the Constitution, have the right to speak in and otherwise to take part in the proceedings of a House without being members of it.
Article 194 is the same provision for the Legislature of a State, with section 26 of the same amending Act in place of section 15.
Two features of clause (3) are worth separating. The first is the delegation: the content of the powers is to be fixed by ordinary law, made by the body whose powers they are, and alterable by it "from time to time". The second is the fallback: until that law is made, the content is whatever the House had at an earlier moment. The clause therefore does two different things — it hands a subject to the legislature, and it supplies an interim rule for the period before the legislature takes the subject up.
Interim rules of that kind are ordinary in the Constitution. Article 106 provides that members of either House shall receive such salaries and allowances as may from time to time be determined by Parliament by law "and, until provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the Dominion of India". Article 195 does the same for a State Legislature by reference to the members of the Legislative Assembly of the corresponding Province. The drafting technique is identical.
The subject matter is not. What Article 106 holds in suspense is a rate of payment. What Article 105(3) holds in suspense is a power exercisable against a person who is not a member of the House.
The referent, and the referent behind it
The present form of clause (3) was produced by section 15 of the Constitution (Forty-fourth Amendment) Act, 1978, with effect from 20 June 1979. That section is short, and reading it is the only way to learn what the clause used to say:
"In article 105 of the Constitution, in clause (3), for the words '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 this Constitution', the words, figures and brackets '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' shall be substituted."
Section 26 did the same to Article 194(3), in the same words.
So before 20 June 1979 the powers of each House of Parliament, in all respects other than the two immunities, were those of the House of Commons of the Parliament of the United Kingdom as they stood on 26 January 1950. After that date they are those the House itself had immediately before 20 June 1979 — which, by the operation of the clause then in force, were those of the House of Commons on 26 January 1950.
The Supreme Court has traced that chain expressly. In Sita Soren v. Union of India, 2024 INSC 161, decided on 4 March 2024, a Bench of seven Judges recorded: "The privileges enjoyed by the House and its members and committees immediately before the coming into force of Section 15 of the Forty-fourth amendment to the Constitution were those enjoyed by the House of Commons in the UK at the commencement of the Constitution of India." The same, the Court said, was true of Article 194(3) as amended by section 26.
The amendment therefore removed a reference to a foreign legislature from the face of the Constitution without removing it from the law. It changed the route and not the destination. A question about the extent of a House's power to act against a stranger is still answered by establishing what the House of Commons could do on 26 January 1950; the only difference is that the enquiry now proceeds in two steps, the second of which is the first.
What that enquiry involves was set out in Special Reference No. 1 of 1964, AIR 1965 SC 745, where the Supreme Court was asked for its opinion under Article 143(1) on the powers of a State Legislature and on the jurisdiction of a High Court over an order of commitment. Construing Article 194(3) in its original form, the Court held that the power claimed must be shown to have subsisted at the commencement of the Constitution, and added a requirement that is easy to miss: "It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts." The Court then put the test in a sentence: "the inquiry which is prescribed by this clause is : is the power in question shown or proved to have subsisted in the House of Commons at the relevant time ?"
That is not a question of construction. It is a question of historical fact about the practice of another country's legislature and the attitude of that country's courts to it, at a date now more than seventy-six years past. It remains the question on which the lawfulness of a committal by an Indian House depends.
The instant the text does not date
Clause (3) fixes its content at a moment, and does not say when that moment was. The moment is "immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978". Section 1(2) of that Act provided that it "shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act". The date for section 15 — 20 June 1979 — is therefore in a notification, and appears nowhere in the Constitution.
The cost of that shows up in the official compilation. The footnotes to Articles 105 and 194 both record the substitutions as taking effect on 20 June 1979. The same footnotes also record the fate of an earlier amendment, discussed below, which section 45 of the Forty-fourth Amendment omitted — and they date that single section's effect to 20 June 1979 under Article 105 and to 19 June 1979 under Article 194. One of the two is a slip. It is a small one, but it is the kind of slip that a provision inviting the reader to locate an instant by reference to a section's commencement will keep producing, and the instant being located is the one that fixes the content of a power to imprison.
The power the clause holds in suspense
What clause (3) leaves undefined is easier to weigh with an instance of it in view.
The facts recited in Special Reference No. 1 of 1964 are these. The Legislative Assembly of Uttar Pradesh resolved to reprimand Keshav Singh, a resident of Gorakhpur, for contempt of the House and for breach of the privileges of one of its members, arising out of a pamphlet he had signed. Later the same day, for his conduct in the House when summoned to receive the reprimand and for an earlier letter to the Speaker, the Speaker directed that he be committed to prison; "a warrant was issued over the signature of the Speaker of the House, Mr. Verma, directing that Keshav Singh be detained in the District Jail, Lucknow, for a period of seven days, and in execution of the warrant Keshav Singh was detained in the Jail."
An advocate presented a petition on his behalf before the Lucknow Bench of the Allahabad High Court under section 491 of the Code of Criminal Procedure, 1898 and Article 226, the Bench of Beg and Sahgal JJ. released him on bail, the Assembly treated the Judges and the advocate as themselves in contempt, and the resulting conflict between the House and the Court produced the reference under Article 143. The Supreme Court answered that it was competent for the Lucknow Bench "to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail", that neither the advocate nor the Judges had committed contempt of the Assembly, and that it was not competent for the Assembly to direct the production of the Judges and the advocate before it in custody.
What matters here is not the outcome of that dispute but its subject. The power asserted was a power to send a citizen to jail, exercised by a resolution of a House and executed on a warrant signed by its Speaker. That power is not conferred by any clause of Article 194. It exists, if it exists, because of the latter part of clause (3) — which is to say, because the House of Commons had it on 26 January 1950 and the English courts had recognised it.
What the enabling power would cost the House that exercised it
The obvious question about clause (3) is why the law it contemplates has never been made. As at March 2024 the Supreme Court was still describing the position as one of "the absence of legislation on privileges".
There is an answer in the case law, and it is not inertia.
In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha, [1959] Supp. 1 S.C.R. 806, a Constitution Bench of five Judges — Das C.J. speaking for the majority, Subba Rao J. dissenting — held that the privileges arising under the latter part of clause (3), the uncodified privileges borrowed from the House of Commons, prevail over the freedom of speech and expression guaranteed by Article 19(1)(a). In Special Reference No. 1 of 1964 the Supreme Court confined that holding rather than extending it, declining to read the earlier decision as laying down that the fundamental rights must always yield to the latter part of Article 194(3), and stating the result precisely: "The majority decision, therefore, must be taken to have settled that Art. 19(1)(a) would not apply, and Art. 21 would."
A law made under the first part of clause (3) would stand differently. It would be a law, and Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III, and that any law made in contravention of the clause shall be void to the extent of the contravention. The Court said as much in Sita Soren: if Parliament were to enact a law codifying its privilege, it may not step over the fundamental rights of citizens, by virtue of Article 13.
So the clause offers a House a choice between two versions of the same power. Defined, it is a statute, subject to Part III in the ordinary way, and open to challenge by anyone against whom it is used. Undefined, it is a constitutional privilege which has been held to displace Article 19(1)(a). The enabling power, if exercised, would reduce the thing it was given to define.
That is a sufficient explanation of the gap, and its implication is that the provision contains an incentive against its own operation. A clause drafted to be temporary carries a reason for remaining permanent.
Two amendments to clause (3), neither of them a definition
Clause (3) has been amended once and nearly amended once more. Both occasions are instructive, because on both the subject was the referent and not the content.
Section 21 of the Constitution (Forty-second Amendment) Act, 1976 would have substituted a new clause (3) in Article 105, and section 34 would have done the same in Article 194. Neither was ever brought into force. The replacement clause for Article 194, which the compilation prints in its footnotes, would have fixed a State House's privileges as those it had at the commencement of section 34 together with such as might be evolved by that House, with a Legislative Assembly looking to the House of the People and a Legislative Council to the Council of States. The printed text of that clause is corrupt in the compilation and is better paraphrased than quoted; its direction is clear enough. It would have replaced an external referent with an internal one and left the content to be developed by the Houses themselves.
Those sections were never notified, and then section 45 of the Forty-fourth Amendment omitted them. That section reads: "In the Constitution (Forty-second Amendment) Act, 1976, sections 18, 19, 21, 22, 31, 32, 34, 35, 58 and 59 shall be omitted". The result was that the replacement clause disappeared without ever having had effect. What the Forty-fourth Amendment did instead, by sections 15 and 26, was to substitute the words examined above: it deleted "the House of Commons of the Parliament of the United Kingdom" and put in a self-reference that preserved the content of what it deleted.
The same amending Act shows what Parliament does when it actually wants to create an immunity in this field. Section 42 of the Forty-fourth Amendment inserted Article 361A, which provides that no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of proceedings of either House of Parliament or of a State Legislature, "unless the publication is proved to have been made with malice", with a proviso excluding reports of secret sittings and a clause extending the protection to broadcasts.
That is a definite rule, with an exception and a proviso, and it is drafted as one. It was put into the Constitution rather than into a law under clause (3). An immunity of exactly the kind clause (3) contemplates being defined was instead created by constitutional amendment, needing a special majority, while the power to define the same subject by ordinary law sat unused.
What the Constitution did write down about the courts
If clause (3) leaves the power unstated, it does not follow that the Constitution left everything about it unstated. It wrote down the limit on judicial inquiry, and wrote it narrowly.
Article 122(1) provides: "The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure." Clause (2) provides that no officer or member of Parliament in whom powers are vested for regulating procedure or the conduct of business, or for maintaining order, "shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers". Article 212 is the same for a State Legislature.
What is withdrawn there is a ground, not a subject. The validity of proceedings may not be questioned on the ground of irregularity of procedure; the article does not say that it may not be questioned at all. The consequence has been drawn repeatedly, and was restated among the conclusions in Sita Soren: "Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review". The same judgment records that the courts have jurisdiction to determine whether the privilege claimed in fact exists and whether it has been exercised correctly, and that in the absence of legislation a House may claim only such privilege as belonged to the House of Commons at the commencement of the Constitution, the House not being the sole judge of its own privilege.
So the structure, taken as a whole, runs as follows. The powers that operate on non-members are not stated. The limit on judicial examination of them is stated, and is narrow. The result is that a court must decide whether a power exists, using a test that sends it outside the Constitution, outside Indian law, and outside the present century.
Two clauses, two fates
The difference between a clause with text and a clause with a reference shows most clearly in what can be done to each of them.
Clause (2) of Article 105 has been construed, and the construction has been corrected. In P.V. Narasimha Rao v. State (CBI/SPE), decided on 17 April 1998, the judgment of the majority, as the later Court described it, "grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking". In Sita Soren the Bench of seven Judges disagreed with and overruled the majority on that aspect, concluding that an individual member cannot assert a claim of privilege to seek immunity from prosecution on a charge of bribery in connection with a vote or speech, and that bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194. That is an ordinary operation: a court reads words, a later and larger court reads the same words differently, and the change can be traced on the page.
No comparable operation is available on clause (3). There is nothing in it to read differently. A party contending that a House lacks a power it claims is not inviting a court to construe a provision; it is inviting the court to find a fact about the House of Commons in 1950, and about whether the English courts of the day recognised what the Commons asserted. A court can get that right or wrong, but it cannot interpret the Constitution in doing so, because on this question the Constitution has given it nothing to interpret.
The asymmetry runs in one direction. Clauses (1) and (2), which protect members, are the written clauses. Clause (3), which carries the powers used against everyone else, is the clause that refers out.
What the arrangement assumes
The Constituent Assembly's reasons for the original reference are on the record, and Sita Soren summarises them: Indian legislators had enjoyed no privileges before the Constitution, so a reference to the Dominion Parliament would have left the Houses with virtually none, and it was thought neither possible nor preferable to compile an exhaustive list of privileges as a schedule to the Constitution. In Special Reference No. 1 of 1964 the Court read the same assumption out of the clause's structure: "The Constitution-makers must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities."
Both reasons were reasons about a period of time. The borrowing was to hold the position while a definition was prepared. The Houses were expected to take "some time".
Seventy-six years is not an interval. A clause that says "until" and is never followed by the event it waits for is not a transitional provision; it is the provision. The powers of the Houses of Parliament and of every State Legislature over persons who are not their members have been governed for the whole life of the Constitution by the only part of this apparatus that the Constitution deliberately did not write.
There is nothing unconstitutional in that. Clause (3) authorises exactly the position that obtains, and the Supreme Court has held both that the position is good law and that the courts may examine what is claimed under it. The objection is narrower. The subjects a constitution leaves to be defined later are ordinarily subjects whose definition can wait — rates of allowance, the composition of a body, the machinery of an office. This one is a power to imprison. Of all the things to leave to a law that might be made from time to time, the one left unmade is the power under which a citizen may be committed to custody by a body that is not a court, on the strength of a practice recognised somewhere else before the Constitution began.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.