Parliamentary privilege and their breach

(MainsGS2:Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.)

Context:

• Recently, On breach of privilege notice moved by a few members against 12 Opposition MPs for “disorderly conduct” which forced multiple adjournments, Rajya Sabha Chairman Jagdeep Dhankhar has directed the Privileges Committee of the Upper House to investigate the complaints and submit a report.

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.
• Articles 105 and 194 of the Constitution deal with these powers, privileges and immunities.
• These immunities, called parliamentary privilege, is defined as follows in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament as “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.”

Freedom of speech in Parliament:

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

Other main privileges:

• A member is exempt from legal action for anything said or voted 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 corresponding powers, privileges and immunities of State legislatures and their members and committees.
• 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.
• 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.
• 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.

Act that defines parliamentary privileges:

• 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.

Raising 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.”

Punishment for a breach:

• 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, however the resolution was rescinded in 1981.