Explained | Parliamentary privilege and punishment in case of breach

As the Committee of Privileges of the Rajya Sabha investigates the alleged breach of privilege by 12 Opposition MPs, we take a look at the concept of Parliamentary privilege and punishment in case of breach.

March 01, 2023 12:35 pm | Updated 12:35 pm IST

File photo: Rajya Sabha Chairman Jagdeep Dhankhar conducts Rajya Sabha proceedings during the Budget Session of Parliament, in New Delhi, February 13.

File photo: Rajya Sabha Chairman Jagdeep Dhankhar conducts Rajya Sabha proceedings during the Budget Session of Parliament, in New Delhi, February 13.

The story so far: Earlier this week, Rajya Sabha Chairman Jagdeep Dhankhar directed a parliamentary committee to probe the alleged breach of privilege by 12 Opposition MPs for their “disorderly conduct” that resulted in frequent adjournments during the first phase of the Budget session, which concluded on February 13. The Chairman also separately referred the matter of “repeated submission of identical notices” by AAP leader Sanjay Singh to the Committee of Privileges in the Upper House.

What led to the probe against Opposition MPs?

In a Rajya Sabha bulletin dated February 18, the secretariat informed that the Chairman had referred a question of an alleged breach of privilege against 12 MPs of Congress and Aam Aadmi Party (AAP) for violating the rules of the House by entering the well of the House, raising slogans and “persistently and wilfully” obstructing the proceedings.

These included nine MPs from Congress — Syed Nasir Hussain, Shaktisinh Gohil, Imran Pratapgarhi, L Hanumanthaiah, Kumar Ketkar, Jebi Mather Hisham, Ranjeet Ranjan, Phulo Devi Netam and Naranbhai J. Rathwa — and four from AAP — Sanjay Singh, Sandeep Kumar Pathak and Sushil Kumar Gupta. In addition to this, the bulletin mentioned a separate privilege notice against AAP’s Sanjay Singh for “non-adherence to the directions of the Chair”. Mr. Dhankhar had rebuked the AAP leader for repeatedly submitting similar notices seeking suspension of business to discuss the Adani issue when the House was in session.

The action, which came days after the first leg of the session witnessed frequent confrontations between Mr. Dhankhar and the Opposition benches over the rejection of notices and discussion on the Adani issue, has sparked off a debate on discussion versus discipline in Parliament. On Thursday, CPI MP Binoy Viswam calledthe Chairman’s decision against the “democratic heritage” of Parliament. “I fail to understand as to how parliamentary privilege is being violated when a Member of Parliament is exercising their right and puts forward a notice as per the rule book which regulates their conduct in the House,” the CPI leader wrote in a letter to the Chairman, urging him to withdraw his reference.

A breach of privilege notice was earlier filed against former Congress president and Lok Sabha MP Rahul Gandhi for his remarks in the House linking industrialist Gautam Adani with Prime Minister Narendra Modi.

What is parliamentary privilege?

Parliament, as an institution, and its members, in an individual capacity, enjoy certain rights and immunities which enable them to perform their parliamentary duties “efficiently and effectively” without any hindrance.

These immunities, called parliamentary privilege, is defined as follows in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament: “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.”

Articles 105 and 194 of the Constitution deal with these powers, privileges and immunities.

What are the main privileges? 

1. Article 105 mainly deals with the powers and privileges of both Houses of Parliament and its members and committees. This article provides for the following:

- Freedom of speech in Parliament is subject to the provisions of the Constitution and the rules regulating the procedure of the Houses. “It is an essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the House without any fear,” says the Rajya Sabha rulebook. Article 121 of the Constitution, however, restricts members from discussing the conduct of the judges of the Supreme Court and the High Court.

Freedom of speech as privilege
Notably, the rules state that if any statement is made on the floor of the House by a member or minister which another member believes to be untrue, incomplete or incorrect, it does not constitute a breach of privilege. However, Rule 353 of the Lok Sabha says that an MP is required to give advance notice of an allegation for the respective minister to conduct an inquiry.

- A member is exempt from legal action for anything said or vote given in Parliament or one of its committees. The member is also not liable for any publication of a report, paper, vote or proceedings.

- Powers, privileges and immunities of each House of Parliament and that of its members and committees are required to be defined by Parliament by law. “… and, until so defined shall be those of that House and its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act 1978,” the clause states. 

- The fourth clause states that provisions that apply to MPs also extend to non-members — those who have the right to speak and take part in proceedings or parliament committees, by virtue of the Constitution.

Similarly, Article 194 outlines correspondingpowers, privileges and immunities of State legislatures and their members and committees.

2. Validity of any proceeding of Parliament can’t be inquired into by a court on the grounds of alleged irregularity of procedure, as per the provisions of Article 122.

3. An MP can’t be arrested in a civil case, 40 days before the commencement of the session or a committee meeting, and 40 days after its conclusion, under Section 135A of the Civil Procedure Code, 1908. However, this privilege is limited to civil cases. An MP doesn’t enjoy any immunity against action in a criminal case, during the session or otherwise. Parliament, however, reserves the right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.

This particular privilege came into focus last year when the Opposition alleged that central agencies such as the Enforcement Directorate (ED), Central Bureau of Investigation (CBI) and the Income Tax department (IT) were misused by the government to frame political rivals. The then Rajya Sabha Chairman M. Venkaiah Naidu had recalled the K. Anandan Nambiar case in which the Supreme Court held that an MP could claim no special status higher than that of an ordinary citizen, and is as much liable to be arrested, detained or questioned, even during the session. 

4. A member has immunity from arrest and “service of legal process” within the precincts of the House without prior permission from the Chairman or Speaker.

Is there any Act that defines parliamentary privileges?

No. So far, neither Parliament nor any State legislature has enacted a legislation that defines the powers, privileges and immunities of the Houses, or that of its members and committees. These immunities are presently governed by precedents— by British parliamentary conventions.

Amid calls for the codification of privileges to remove ambiguity, the Committee of Privileges of the Lok Sabha considered the matter in 2008. But in its report, presented to the House on April 30 that year, the panel recommended against the codification of parliamentary privileges, saying the majority “who expressed their opinion in the matter” did not favour it.

What amounts to breach of privilege?

If an individual or authority disregards or undermines a parliamentary privilege of a member or the House, it is called a ‘breach of privilege’. The offence is punishable. “Besides, actions in the nature of offences against the authority or dignity of the House, such as disobedience to its legitimate orders or libels upon itself, its members, committees or officers also constitute a breach of privilege,” as per the Rajya Sabha booklet on privileges. 

Breach of privilege is different from contempt of the House. The latter is defined as “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency directly or indirectly, to produce such results”. Some examples are speeches or writings reflecting on the character or proceedings of the House or its members, reflections on the character or impartiality of the Chair, or the publication of expunged proceedings.

What is the process to raise a question of privilege?

Parliament is the sole authority to ascertain if there has been a breach of privilege or contempt of the House— no court is entrusted with this power.

A member of the House can raise a question involving a breach of privilege with the consent of the Chairman or Speaker. If the presiding officer gives consent, the Council can either consider the question and come to a decision or refer it to the Committee of Privileges — a 10-member panel in the Rajya Sabha and a 15-member panel in the Lok Sabha.

The Chairman is also empowered to refer, suo motu, any question of privilege to the Committee for examination, investigation and report. “The Chairman can also himself inquire into a breach of privilege matter instead of referring it to the Committee and apprise the House of the result of his inquiry and close the matter,” the Rajya Sabha rulebook adds.

Not more than one question is allowed to be raised at the same sitting, the rules state, adding that the “question shall be restricted to a specific matter of recent occurrence.”

How does the Committee of Privileges work?

If the matter is referred to the panel, it examines the question of privilege and decides if a breach of privilege is involved and the nature of the breach and circumstances leading to it. A report with recommendations is then presented to the House for its consideration.

After a motion for consideration of the reportt, the Committee moves that the House agree or disagree with the amendments and recommendations in the report. Further action is taken per the decision of the House— if the resolution is unanimously passed.

What is the punishment for a breach of privilege?

The authority to decide the punishment lies with the House. A person found guilty of breach of privileges or contempt can be reprimanded, warned or sent to prison. The period for which the House can commit an offender to custody or prison for contempt is limited to the duration of the session of the House. In case its member is found guilty, the MP can be suspended from the House or face expulsion.

One of the most significant cases of breach of privilege was seen in 1978 against Indira Gandhi. The former PM was found guilty of contempt and breach of privilege by the privileges committee of the Lok Sabha, after a notice accused her of harassing government officials. She was expelled from Parliament and sent to jail. The resolution was, however, rescinded in 1981.

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