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FREE SPEECH LEGISLATIVE IMMUNITY OF A MINISTER
by Dr. R. Prakash*
Cite as : (2004) 8 SCC (J) 48
Article 164(4) contemplates appointment of a Minister who is a not a Member of the Legislature of a State and also continuation in the office of a person as Minister after he ceases to be a member of a State Legislature. In both cases, the Minister can hold office only for a period of six consecutive months.
A three-Judge Bench of the Supreme Court in S.R. Chaudhuri v. State of Punjab1 held that a Minister who is appointed under Article 164(4) does not enjoy the privileges under Article 194(2). Dr. A.S. Anand, C.J. observed in this regard as follows:
"... Though under Article 177, the individual shall have a right to speak and to otherwise take part in the proceedings of the legislative Assembly, he does not carry with him the usual "free speech" legislative immunity as provided by Article 194(2)2".  (emphasis supplied)
It is submitted that the above observations were rendered per incuriam of Article 194(4) of the Constitution.
It can be seen from clause (4) of Article 194, that it specifically confers powers and privileges under clauses (1), (2) and (3) of Article 194 on those who by virtue of the constitution, have the right to speak in and otherwise to take part in the proceedings of a House of a Legislature of a State. Article 177 of the Constitution confers the right on every Minster to speak in and otherwise to take part in the proceedings of a House of the Legislature of a State. Article 177 by using the words "Every Minister" comprehends a Minister who is not a Member of the Legislature of a State, but was appointed under Article 164(4). Therefore, a Minster appointed under Article 164(4) also enjoys legislative powers and privileges by virtue of Article 194(4) read with Article 177 of the Constitution and the contrary observations in S.R. Chaudhuri v. State of Punjab2, it is respectfully submitted, are not correct.
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* Advocate, Supreme Court.
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1 (2001) 7 SCC 126
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2 Ibid., at p. 145.
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