The Speaker and parliamentary privileges - Constitutional Law II

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1. Election, tenure and removal
2. Powers and functions
3. Parliamentary privileges: Article 105 (Article 194 for States)
4. Privilege and the courts: the leading cases
5. Codification
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two questions, one topic. KSLU asks about the Lok Sabha Speaker as an office and, separately, about parliamentary privilege. Both turn on the same tension: how far a House may be the judge of its own affairs, and where the courts come back in. Keep that thread running through either answer.

1. Election, tenure and removal

Under Article 93 the Lok Sabha chooses two of its members as Speaker and Deputy Speaker, as soon as may be after its first sitting. The election is by simple majority of members present and voting. The State counterpart is Article 178.

Vacation (Article 94). The Speaker vacates office on ceasing to be a member, may resign by writing addressed to the Deputy Speaker, and may be removed by a resolution passed by a majority of all the then members of the House, after at least fourteen days' notice.
Dissolution. The Speaker does not vacate office on dissolution, but continues until immediately before the first meeting of the new House. The chair is never empty.
During a removal resolution (Article 96). The Speaker does not preside, but may speak and vote in the first instance — and has no casting vote on that occasion.
Salary (Article 97). Charged on the Consolidated Fund of India, so it is not voted on, which protects the office from the majority of the day.

2. Powers and functions

Presiding and order. The Speaker conducts the business of the House, interprets the Rules of Procedure, decides points of order and may adjourn or suspend the sitting in the absence of quorum (Article 100(3) and (4)).
Casting vote (Article 100(1)). The Speaker does not vote in the first instance but has a casting vote in the case of an equality of votes.
Money Bill certification (Article 110(3) and (4)). If a question arises whether a Bill is a Money Bill, the Speaker's decision is final, and the Speaker's certificate is endorsed on the Bill when it goes to the Rajya Sabha and to the President. Whether that finality shuts out judicial review is unsettled: in the Aadhaar case (2018) the majority examined the certificate and upheld the Aadhaar Act as a Money Bill, and in Rojer Mathew v. South Indian Bank (2019) a Constitution Bench doubted that reasoning and referred the question to a larger Bench.
Joint sitting (Articles 108 and 118(4)). When the President summons a joint sitting to resolve a deadlock on an ordinary Bill, the Speaker of the Lok Sabha presides.
Disqualification on defection. Under paragraph 6 of the Tenth Schedule the Speaker decides whether a member has incurred disqualification. This is the most contested function today and is dealt with in the anti-defection note.
Committees and Secretariat. The Speaker appoints chairpersons of committees, is ex officio chair of the Business Advisory Committee, Rules Committee and General Purposes Committee, and heads the Lok Sabha Secretariat.

Proceedings in the House cannot be questioned on the ground of irregularity of procedure, and the officer regulating them is not subject to the jurisdiction of any court in that respect (Article 122; Article 212 for States). The courts read this as a bar to challenges on procedural irregularity only, not to illegality or unconstitutionality.

One limit on the Speaker came from Nabam Rebia and Bamang Felix v. Deputy Speaker, 2016 INSC 526, (2016) 8 SCC 1: a Speaker facing a notice of removal should not decide disqualification petitions. That rule was doubted in 2023 and referred to a seven-judge Bench.

3. Parliamentary privileges: Article 105 (Article 194 for States)

Privileges are the special rights each House and its members enjoy so that they can do their work without obstruction. Article 105 has four parts:

105(1) — freedom of speech in Parliament, subject to the Constitution and the rules and standing orders.
105(2) — no member is liable in any court for anything said or any vote given in Parliament or a committee; nor is anyone liable for a publication by or under the authority of either House.
105(3) — other powers, privileges and immunities are as Parliament defines by law, and until then those the House had immediately before the Forty-fourth Amendment (1978) came into force. Before 1978 the text referred directly to the House of Commons. Parliament has never codified them.
105(4) — the same protections extend to non-members entitled to speak, such as the Attorney-General and Ministers who sit in the other House.

Among the uncodified privileges are the power to punish for contempt, to regulate internal proceedings, to exclude strangers, and to expel members.

4. Privilege and the courts: the leading cases

Keshav Singh (1964). The Uttar Pradesh Assembly committed Keshav Singh to prison for contempt. The Allahabad High Court granted him bail on a habeas corpus petition, and the Assembly responded by ordering that the two judges and the advocate be brought before it in custody. The President referred the dispute under Article 143. In Special Reference No. 1 of 1964, 1964 INSC 203, AIR 1965 SC 745, a seven-judge Bench advised that the privileges under Article 194(3) are subject to the fundamental rights, in particular Article 21; that a High Court can entertain a habeas corpus petition from a person committed by the House; and that the judges were not in contempt of the House for doing so. The Indian legislature, unlike the House of Commons, is not the sole and exclusive judge of its privileges.

Raja Ram Pal (2007). After the “cash for query” sting, both Houses expelled eleven members. In Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, 2007 INSC 22, (2007) 3 SCC 184, a Constitution Bench upheld the power to expel as part of Article 105(3). But the exercise of privilege is open to judicial review for gross illegality, irrationality, violation of fundamental rights or mala fides. Article 122 protects only against challenges based on procedural irregularity.

Bribery and immunity: Narasimha Rao overruled. In P.V. Narasimha Rao v. State (CBI/SPE), 1998 INSC 185, (1998) 4 SCC 626, a 3:2 majority held that MPs who took bribes to vote against a no-confidence motion, and voted, were immune from prosecution under Article 105(2); the one who took the bribe but did not vote was not. The result rewarded the bribe-taker who kept his bargain.

A seven-judge Bench unanimously overruled it in Sita Soren v. Union of India, 2024 INSC 161. The Court held that bribery is not protected by Article 105(2) or 194(2): the offence is complete when the bribe is accepted, whatever happens to the vote, and taking a bribe is not something “said” or a “vote given” in the House. Immunity exists only where it is tied to the collective functioning of the House and necessary for the member's duties. The case concerned a Jharkhand MLA accused of taking a bribe to vote in a Rajya Sabha election, so it applies to State legislators and to such elections too.

Trap. Do not write that the House is the final judge of its own privileges. That is the English position. In India, privileges are subject to Part III and to judicial review (Keshav Singh, Raja Ram Pal), and after Sita Soren they do not cover corruption.

5. Codification

Because privileges are uncodified, the member and the citizen cannot know their full extent in advance. The usual argument for codification is certainty and the subjection of privileges to Part III; the argument against is that codified privileges would become fully justiciable. Mention both sides in one paragraph and conclude that the courts have already brought privilege within the Constitution.

How this is examined

“Lok Sabha Speaker” has appeared recently as a short note: election, removal, powers, with Money Bill certification, casting vote and the joint sitting. Privileges come as an essay (privileges of Parliament and their relationship with fundamental rights) or as a short note on Keshav Singh.

For the essay, the structure is Article 105 clause by clause, then the three cases in order: Keshav Singh for subjection to Part III, Raja Ram Pal for review of expulsion, and Sita Soren for the end of bribery immunity. Add the Tenth Schedule role of the Speaker in one line to link the two halves of the topic.