Parliamentary privileges: India
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Contents |
A backgrounder
What are these privileges?
February 20, 2023: The Times of India
What are these privileges?
- Freedom of speech in Parliament gives them absolute immunity from prosecution in courts for what they say inside a House or before any of its committees
- They have the right of publication of the proceedings of the Parliament House they belong to
- No MP can be prosecuted in any court for saying anything or voting choices in Parliament
- MPs enjoy freedom from arrest in civil cases
- They have the right to exclude strangers from parliamentary proceedings and hold secret sessions
- They have the right to ban the publication of its proceedings and reports
- They have the right to regulate internal proceedings
* They have the right to punish members or outsiders for contempt However, an MP is prohibited from using “defamatory or indecent or undignified or unparliamentary words” in Parliament. This balance is maintained by subjecting an MP’s speech to the Rules of Parliament and the Speaker’s interpretation of an MP’s “good sense” during her speech.
Article 121 bars MPs from debating in Parliament the conduct of a Supreme Court or a high court judge in the discharge of their duties.
Are parliamentary privileges codified?
Parliament has passed no law to deal with a breach of parliamentary privileges, which is defined as an offence that is committed “when any of the privileges, either of the members individually or of the House in its collective capacity, is disregarded or attacked by any individual or authority”.
A breach of privilege is also an act of contempt of the House/Parliament. However, all instances of contempt are not breaches of parliamentary privileges. While a case of the breach of privileges is generally maintained against an MP, any person could be held for the contempt of any House of Parliament for their defamatory or scandalous remarks or acts.
When parliamentary privileges are breached
The object of parliamentary privileges is to safeguard the freedom, authority and dignity of Parliament while allowing members to express their concerns freely and independent of any pressure or allurement. In the cases of a breach of parliamentary privileges, the House has the power to punish a person committing contempt or a breach of any of its privileges.
Anything that does not conform to the established practice is expunged from the record if the Speaker is satisfied with the complaint raised by another member of the House. Parliamentary privileges don’t offer protection to an MP in this regard. Over the years, the list of words that can’t be spoken in Parliament has grown enormously.
What’s the role of the Speaker?
Any member, with the consent of the Speaker or the chairperson, can move a breach of privileges motion against a fellow member citing a specific part of the speech concerned. The House itself considers the question of privilege upon being referred to it by the Speaker, who may send the complaint to the privileges committee for examination, investigation and report.
The Lok Sabha Speaker or the Rajya Sabha chairperson could allow a half-an-hour debate on the admissibility of the privilege motion against an MP. The complainant has to present all relevant materials for considering the breach of privileges complaint. New evidence can’t be produced at a later stage. This is the first level of scrutiny of the breach of privilege cases. Here, they decide whether the matter is fit for further inquiry by the concerned House. Once the admissibility question is settled, the Speaker sends the matter to a 15-member privileges committee, before which the MP facing the breach of privileges motion gets the opportunity to explain their position.
How a breach of privileges question is settled
The question of whether a matter is actually a breach of privilege or contempt of the House can only be decided by the House itself directly or through its committee. The House alone is the master of its privileges.
To decide whether there has been a breach of privileges or contempt of the House, it has to be proved that the statement was not only wrong or misleading but it was made deliberately to mislead the House.
A breach of privileges can arise only when the member or the minister makes a false statement or an incorrect statement wilfully, deliberately and knowingly.
MPs are prohibited from using ‘defamatory or indecent or undignified or unparliamentary words’ in Parliament
This means every incorrect statement by an MP, including ministers, can’t be taken as a breach of privileges or a contempt of the House. The motive has to be proved.
In a ruling, the Speaker said, “Incorrect statements made by a minister cannot make any basis for a breach of privilege. It is only a deliberate lie, if it can be substantiated, that would certainly bring the offence within the meaning of breach of privilege. Other lapses, other mistakes do not come under this category, because every day we find that ministers make their statements in which they make mistakes and which they correct afterwards.”
What is the punishment?
If the privileges committee finds an MP guilty of the breach of privileges, the House may
- admonish or reprimand the legislator
- suspend the member from the House
- expel the member from the House
For a non-member, punishment may extend up to imprisonment. But as a matter of rule, extreme punishments have been rare.
How have punishments been handled in the past?
The privileges versus free speech debate erupted in the very first decade of the Constitution’s adoption. In the 1958 MSM Sharma case, the Supreme Court gave primacy to privileges over free speech. This was the time when most legislators were freedom fighters. But a decade later, in a 1967 case, the court held that Parliament should not have absolute powers in dealing with the question of privileges and contempt.
- In 1961, Blitz editor RK Karanjia was indicted for breach of privilege over an article that castigated former Congressman and Praja Socialist Party veteran JB Kripalani while attempting to vindicate then defence minister VK Menon, who had been the target of Kripalani. Karanjia was reprimanded in the Lok Sabha and the gallery pass of his correspondent was annulled.
* In 1967, two people were held to be in contempt of the Rajya Sabha, for having thrown leaflets from the visitors’ gallery.
Subramanian Swamy was expelled from the Rajya Sabha in 1976 for bringing ‘disgrace’ to Parliament through his interviews to foreign publications
- Possibly, the most famous case of breach of privileges came against Indira Gandhi in 1978, when she was expelled from the Lok Sabha on then Union home minister Charan Singh’s privilege motion based on observations made by Justice Shah Commission, which investigated the excesses during the Emergency.
* In 1976, Subramanian Swamy of the Jan Sangh was expelled from the Rajya Sabha for bringing “disgrace” to Parliament through his interviews to foreign publications.
- In 1983, a person was held in breach for shouting slogans and throwing chappals from the visitors’ gallery.
* In recent years, India’s then ambassador to the US Ronen Sen was let off by the Lok Sabha privileges committee in 2007 for his “headless chickens” remark, targeting those opposing the India-US nuclear deal.
* In 2008, an Urdu daily editor was held guilty by the Rajya Sabha privileges committee for calling the Rajya Sabha deputy chairperson a “coward”. But the committee did not recommend a punishment saying, “It would be better if the House saves its own dignity by not giving undue importance to such irresponsible articles published with the sole intention of gaining cheap publicity.”
Does India need more?
Though a breach of privileges has been an intensely debated issue right from the first case involving the Blitz editor, Parliament has avoided codifying what constitutes a breach. Which begs the question: How can Parliament, without defining and disclosing to the citizens the powers and privileges of its members, assume to itself the power to punish the sovereign people or their representatives for exercising a fundamental right to freedom of speech and expression guaranteed under Article 19 of the Constitution?
Important rulings
i) Breach of privacy; ii) remarks against MPs
Ambika Pandit, July 10, 2019: The Times of India
Breach of privilege only if unauthorised collection of call records, phone-tapping obstructs official duty: Panel
NEW DELHI:The privileges committee of Rajya Sabha, led by deputy chairman Harivansh, has held that while unauthorised collection of call data records (CDR), tapping of phones, hacking of mobiles and emails of an MP is punishable under criminal law on the ground of breach of privacy, the offence would tantamount to breach of privilege only if it hinders or obstructs the victim’s functioning as a lawmaker.
The observations and recommendations follow reconsideration of a previous report of the committee that looked into the complaint of senior BJP leader and Rajya Sabha MP and then leader of opposition Arun Jaitley. It is observed that there was no breach of privilege of Jaitley or of the House in that matter. The committee asserted that there was definitely a breach of right to privacy and directed the Delhi police through the ministry of home affairs to pursue with sincerity the criminal cases filed in the matter so that the guilty could be punished and inform the committee of the outcome of the judicial proceedings.
A notice of breach of privilege dated February 27, 2013 was given by some members of Rajya Sabha on the alleged monitoring and surveillance of mobile phones of then leader of opposition Arun Jaitley by Delhi Police personnel and some other individuals.
The privileges committee in a separate report “strongly condemned” remarks made by Sadhvi Prachi, head of a religious organisation, against MPs who criticised the hanging of terrorist Yakub Menon. Some MPs had moved breach of privilege notices in August 2015 over her remarks to some news channels where she allegedly stated that there were one or two terrorists in Parliament. Even though Sadhvi Prachi in her written statement tendered an unconditional apology, the committee was not satisfied with her oral reply and hence opined that “her statement was unfair, had contemptuous undertones and also a personal attack on individual MPs even though she did not name any member”.
In another report involving a notice by CPM leader Sitaram Yechury when he was MP, the committee saw no case for breach of privilege against the then HRD minister Smriti Irani. Yechury had alleged that due to allegations and calumny spread against him in the House while he was participating in a discussion on the situation in central institutions of higher education with specific reference to Jawaharlal Nehru University and University of Hyderabad, he was receiving phone calls and messages full of profanity, obscenity and threats to his life. According to the committee, his notice primarily seemed to be against Irani whom he had accused of making allegations on the basis of some of his remarks purportedly denigrating Goddess 'Durga'. The discussion in RS happened on February, 26, 2016.
The Committee has observed that the then HRD minister had only asked for a clarification from him. In the opinion of the panel, she was not commenting, imputing motives or putting allegations on Yechury, rather she was asking whether Yechury, through his remarks, meant to justify the Mahisasur Divas which allegedly denigrated Goddess 'Durga'.
The Committee, however, held persons involved in sending threat messages to Yechury guilty of breach of privilege and issued a warning. It directed the Delhi police to report on the status of criminal cases and investigations within 30 days.
Defamatory statement in Parliament
Not a crime: SC
Dhananjay Mahapatra, Oct 6, 2023: The Times of India
NEW DELHI: The Supreme Court rejected a proposition to term defamatory slogans at political opponents in Parliament or assemblies as part of criminal conspiracy so as to attract penal provisions of law and said an act of defamation on the floor of the House is not a crime.
In an attempt to extricate JMM MLA Sita Soren from 'bribe-for-vote' charge by arguing that she had the immunity under Article 194(2) of the Constitution for 'anything said or vote cast' in the House, senior advocate Raju Ramachandran said if an anterior illegal act connected to the vote cast or speech made in the House is not immune, legislators would be hauled up for conspiracy to defame other members by making derogatory speech inside the House.
Referring to the recent 'hate speech' by a BJP MP against a BSP member in Lok Sabha, Ramachandran said the immunity from prosecution for anything connected to vote or speech, even if it is bribe or conspiracy, has to be absolute as otherwise those making defamatory speeches on the floor of House would have to be investigated about possible conspiracy to do so prior to the speech.
A seven-judge bench of Chief Justice D Y Chandrachud and Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra disagreed with the proposition citing complete immunity from prosecution to members for what they speak inside the House.
"It is a criminal conspiracy, if what is intended to be done is an illegal act. Here the act of a so-called defamatory statement on the floor of the House is not an illegal act and is constitutionally immune from prosecution ... Moreover, if the ingredients of a crime are in the speech itself, which is immune from prosecution, there could be no liability under the penal law," the CJI said, indicating that the House concerned is equipped to handle such speeches.
Attorney General R Venkataramani said anything which is an offence under any statute cannot have a refuge under the immunity from prosecution given to lawmakers for free speech or casting of vote in the House.
However, he sought to distinguish Sita Soren's case by arguing that voting in Rajya Sabha elections had no connection with the proceedings of the House and hence bribes allegedly taken for voting to elect a member of the upper House would make the MLA liable for prosecution.
Solicitor General Tushar Mehta said bribery can never be brought within the cloak of immunity under Articles 105(2) and 194(2) as the offence, even if linked to voting or speech made in Parliament or assembly, is committed outside the House. "The SC need not interpret the provisions taking into account the rarest of rare occurrence of an MP giving bribe to another MP inside the House to vote or speak in a particular manner," he said.
The bench reserved the verdict after the swift completion of the two-day proceedings, which were initiated to review the 25-year-old P V Narasimha Rao ruling that had shielded JMM MPs and MLAs who took bribes for casting their votes in Parliament by extending the immunity attached to the vote to any act connected with it, including receiving bribes.
Sita Soren was accused of taking bribe to vote for a particular candidate in Rajya Sabha elections in 2012. She had sought to take protection under the constitutional provision granting lawmakers immunity from prosecution, which saw her father-in-law Shubu Soren being let off the hook in the JMM bribery case.
Immunity from arrest in civil/ criminal matters
Swati Mathur, August 25, 2021: The Times of India
A Union minister enjoys no immunity from arrest in criminal matters, according to former Lok Sabha secretary general PDT Achary. He told TOI that while Union ministers and members of Parliament enjoy immunity from arrest in the case of civil matters and cannot be arrested 40 days before, during, or 40 days after a Parliament session, but there is “nothing in the rule book” that prevents a minister’s arrest in a criminal matter.
“The Rule is that the presiding officer of the House, of which the arrested person is a member, must be informed upon his arrest. This information is then notified in the Parliament bulletin if the House is not in session, or informed to the House, if it is in session,” Achary said.
The only exception to the rule is when a member or minister has to be arrested from the premises of Parliament, in which case, the permission of the chair must be sought, he said.
Under the Constitution, immunity from arrest in both civil and criminal matters extends only to the President and governors, who cannot be arrested even in criminal matters while they are in office. Any action, even in criminal matters, may only be initiated after they demit office.
Narayan Rane is the first Union minister to be arrested in nearly 20 years and the third to be arrested by state police. In June 2001, Murasoli Maran and TR Baalu, both Union ministers at the time, were arrested by the Tamil Nadu police following the arrest of then TN chief minister Karunanidhi in connection with a Rs 12 crore ‘flyover scam’.
Maran and Baalu were released on bail the following day after then defence minister George Fernandes had visited Chennai.
Rane was arrested by police in Mumbai in connection with certain objectionable remarks he had made against Maharashtra chief minister Uddhav Thackeray.
Immunity from criminal proceedings for MPs who took bribes to vote/ SC, 1998
Chakshu Roy, March 5, 2024: The Times of India
In 1991, Rao as PM helmed a minority govt that completed its five-year term. Govt can remain in office if it has majority of Lok Sabha MPs’ support. MPs can test govt’s strength by moving a no-confidence motion. Rao’s govt faced three no-confidence motions between 1991 and 1996.
BJP’s Jaswant Singh first challenged Rao-govt’s majority in July 1992. Five months later, in December, Vajpayee moved a no-confidence motion against it. Both attempts were thwarted easily. But by 1993, GOI’s strength in LS was shaky. In that year’s monsoon session, CPM’s Ajoy Mukhopadhyay moved a no-confidence motion. This time, govt was on the back foot. It could defeat the motion by just 14 votes, the narrowest margin in LS history.
How did his minority government survive?
There were allegations some MPs accepted bribes to support and vote in govt’s favour to defeat the no-confidence motion. In 1996, CBI filed chargesheets against Rao and Congress leaders, including Buta Singh, Satish Sharma, VC Shukla, RK Dhawan and Veerappa Moily, for bribing MPs. CBI also chargesheeted Ajit Singh, MPs from his Janata Dal group, Shibu Soren and JMM MPs for receiving the bribes. In its chargesheet, CBI noted over ₹3 crore was given to MPs as bribes to save Rao’s govt. In 1997, a special judge ordered framing of charges against these individuals under Prevention of Corruption Act. This order was challenged before Delhi HC.
What were the grounds for the challenge before HC?
Those chargesheeted contended before Delhi HC that Article 105 of the Constitution protected them from criminal proceedings. Article 105 (subsection 2) states, “No MP 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.” A single judge was scathing in his indictment of MPs. He observed, “What’s the best way to win political foes? Persuasion? Understanding? Love? Compassion? Dale Carnegie’s sermons? Sordid facts giving rise to these revision petitions against framing of charges show that secret of success lies, at least with regard to some, in mastering the art of transferring one’s own bulging wallets into eager pockets of others.” The judge rejected the claim of immunity under Article 105(2). The matter reached SC.
How did SC rule in 1998?
A five-judge bench in a 3:2 verdict upheld the claim of parliamentary immunity under Article 105. The judgment stated that those MPs who took bribes and voted in the no-confidence motion were entitled to immunity from criminal proceedings. However, this immunity was unavailable to MPs who didn’t vote in the motion. The majority judgment stated that MPs needed this immunity to “participate fearlessly in parliamentary debates”. The judgment went on to state that the judges were conscious of the seriousness of the offence, but “...our sense of indignation should not lead us to construe the Constitution narrowing, impairing the guarantee to effective parliamentary participation and debate.”
Why did the Article 105 matter come up before SC again?
In 2012, Jharkhand MLA Sita Soren accepted a bribe to vote for an Independent nominee in a Rajya Sabha election. However, she didn’t vote in favour of the bribe-giver and instead voted for her party’s candidate. When authorities started criminal proceedings against her, she sought protection under immunity given in the Narasimha Rao case. Jharkhand HC rejected her claim since she hadn’t voted for the alleged bribe-giver. She then appealed against HC’s order. The matter reached SC in 2019 and was referred to a seven-judge bench.
What does the 2024 order say?
SC said, “The judgment in PV Narasimha Rao which grants immunity from prosecution to a member of a legislature who has allegedly engaged in bribery for casting a vote or making a speech has wide ramifications on public interest, probity in public life, and parliamentary democracy. There is grave danger of this court allowing the error to be perpetuated if the decision were not reconsidered.” SC held corruption and bribery by legislators erode integrity in public life, and parliamentary privileges do not protect such actions.
What are the implications?
After this, MPs and MLAs can face prosecution for corruption related to their speeches and votes in Parliament.
The judgment also states that voting in Rajya Sabha elections is part of parliamentary work. So, the Constitution will not protect any MLA who accepts bribes to vote in a Rajya Sabha election. The writer is from PRS Legislative Research
No immunity for MPs/MLAs in bribe-for-vote: SC, 2024
Dhananjay Mahapatra, March 5, 2024: The Times of India
New Delhi: Shattering a 26-year-old shield from prosecution available to MPs and MLAs who took bribes to vote
or ask questions in Parliament and assemblies, Supreme Court ruled that bribe-taking elected representatives would face the rigour of the Prevention of Corruption Act. Constitutional immunity attached to their speech and vote in a House does not extend to protecting illegal acts, it said.
A seven-judge bench of Chief Justice of India D Y Chandrachud and Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra unanimously reversed the April 17, 1998 ruling of a 5-judge bench in the P V Narasimha Rao case. By a 3:2 majority, it granted immunity from prosecution to legislators who voted in Parliament or assemblies in consideration of bribes.
Wrong take on UK law led to faulty 1998 order: SC, 2024
Dhananjay Mahapatra, March 5, 2024: The Times of India
New Delhi: While overruling SC’s 26-year-old judgment in P VNarasimha Rao case, a 7-judge bench said the earlier verdict was rooted in a wrong interpretation of laws governing freedom of speech in United Kingdom and India, and noted that in the last two decades even UK SC has allowed prosecution of corrupt elected representatives. Going through laws related to prosecution of MPs in UK, US, Canada and Australia, the bench headed by CJI D YChandrachud devoted 30 pages to analysing the development of jurisprudence relating to privileges and immunities enjoyed by MPs in these countries.
The bench leaned towards the position of law in Australia which articulates that “the act of bribery impairs capacity of the member to exercise a disinterested judgment, thereby impacting their ability to act as a representative of people.”
Justice Chandrachud said majority opinion in P V Narasimha Rao case failed to take note of two judgments of Australian Supreme Court but were noticed by minority opinion to interpret Articles 105(2) and 194(2) of Indian Constitution and rule that bribe taking constituted an offence not protected by immunity granted under these two provisions.
The CJI-led bench said Canadian SC ruled that “legislative bodies do not constitute enclaves shielded from ordinary law of the land. The party that seeks to rely on immunity under broader umbrella of parliamentary privilege has onus of establishing its existence.”
The bench adopted in its judgment logic expressed by Canadian SC’s 2005 ruling in Canada (House of Commons) vs Vaid, where the latter had said, “Legislature or member seeking immunity must prove that the activity for which privilege is claimed is closely and directly connected with the fulfilment by legislature of its functions and that external interference will impact autonomy required for the assembly to carry out its functions with ‘dignity and efficiency’.”
Justice Chandrachud said majority judgment in Rao case had referred to two US SC judgments – US vs Thomas F Johnson (1966) and US vs Brewster (1972). Majority opinion failed on two counts — “Firstly, it fails to account for the fact that Speech and Debate Clause which is substantially borrowed from Article IX of English Bill of Rights confers immunity to speech and vote made in Parliament. The understanding arrived at in the majority judgment was not informed by evolution of law in a line of cases in US.”
“Majority judgment has extended its interpretation of Speech and Debate Clause and pigeon-holed the interpretation of Article 105(2) to satisfy this understanding,” the CJI said.
