This article is written by Sakshi Singh, from Amity Law School, Lucknow. This article provides a detailed analysis of the breach of privilege, its legality, and punishment provisions for breach of privilege. It also contains recent landmark judgements related to the topic.

It has been published by Rachit Garg.

Introduction 

Recently, Rahul Gandhi, Member of Parliament from Wayanad, has been facing breach of privilege notice and demands of termination of his membership of the House because of his objectionable remarks on Prime Minister Narendra Modi. Notably, he is already a disqualified member of Parliament after his conviction for criminal defamation by the Sessions Court in Surat for defaming the “Modi” title. His appeal in the High Court against this conviction was also dismissed recently. 

Seeing a recent bunch of cases of breach of privileges, It becomes crucial to understand the source of these privileges and who all are entitled to claim these privileges and immunities. Article 105 and Article 194 of the  Constitution of India, 1949, guarantee privilege, power, and immunities to the elected members and committees so constituted in both houses of Parliament and state legislatures respectively. These articles provide the lawmakers with the freedom of speech inside in Houses and also no charges, civil or criminal, shall be levied against them for anything said or voted by them in the course of the proceedings of the House. 

Parliamentary privileges serve the purpose of providing an authoritative position, a sense of honour and dignified status to elected representatives. The privileges and powers mentioned thereunder are to enable lawmakers to function Independently without any interference or obstruction and not to place the elected members above the law of the land. However, over time these privileges have been used to target any particular member of the House and also to violate the fundamental rights of the citizens by forbidding them to exercise their rights of freedom of speech and expression. In short, these privileges are often misused by the lawmakers to have an upper hand in disregarding the due process of law.  For instance, in 2021 Kerala legislative assembly demanded the withdrawal of criminal charges for vandalism from 6 of its MLAs. They claimed that it is a breach of privilege to admit the case which happened inside the assembly as it can be construed as legislative proceedings. 

Amid widespread misuse of the legislative privilege exponentiated by the lack of specific statutes governing these privileges and immunities, it becomes crucial to note the validity of the breach of privilege proceedings. Thus, After giving a brief description of what are the legislative privileges and breaches of these privileges and laws governing the same, this article will enunciate how the judiciary can intervene in the breach of privilege proceedings along with some leading and recent case laws subjected to the topic. 

What is breach of privilege 

Breach of privilege is the violation of respective rights or immunities of the members of either House of Parliament or the State Assembly. When any member of the House or any stranger tries to devalue the power, privilege and immunity granted to members of the Houses as well as constituted committees, it is said that they are committing an offence of breach of privilege. Parliament and State assembly formulate their own regulation pertaining to rules on the procedure for privilege motion as well as a possible punishment for the said offence. 

Privileges and immunity are granted either to individual members of the parliament of state legislators or collective privileges and immunity. Breach of privileges is a punishable offence. The form of punishment is decided as per the severity of the breach in accordance with the general law of Parliament. 

Examples of breach of privilege

Speaking or writing gross about the character of members

Anything said by word or gesture which disgraces the character of any member of the House is considered a breach of privilege.

Publication of secret sessions 

Strangers are not allowed to roam around in the parliament building during the secret sitting, even people present there are prohibited to take note of or record the proceedings of secret settings. Any contravention to the said regulation is considered a gross breach of legislative privilege. 

Character assassination of the speaker or chairman

Anything said or written which is of derogatory nature and questions the duties performed by the speaker or chairman is considered a breach of privilege. Terming him impartial and favourable to some is also defamatory which in turn makes it an offence of breach of privilege. 

Disseminating manipulative reports of House- proceedings 

If a person publishes a report of proceedings in Parliament or state legislatures which is falsified or distorted, such conduct of publishing is considered a breach of privilege. 

Breach of privileges for disorderly conduct 

Misconduct or disorderly conduct includes, persistently and willfully obstructing the business of the house, disregarding the authority of the chair etc. Showing continuous non-cooperation in conducting peaceful parliamentary sessions and obstructing the daily business of the House is a breach of privilege and a punishable offence. 

In the case of Raj Narain Singh vs. Atmaram Govind And Anr. (1953), Raj Narain (Member of Parliament) was made to withdraw from his membership by the speaker for ‘disorderly conduct’. To this, he has not objected. The court has held that no matter how brief the period of withdrawal was, it constituted a breach of privilege or contempt of the house because important debates and voting could have taken place in that period, which required his presence to represent the people of his constituency through his participation in them. 

Essentials of breach of privilege

Accountability for breach of privilege 

Any member of the House, organisation, authority, or even any stranger can be held accountable for a breach of privilege if their actions contravene the immunity provided in Article 105 and Article 194. 

Attendance in sessions of the House

To establish a good case of breach of privilege, or, to say, in order to claim legislative privilege and immunities, attendance in the session of the House is necessary. If any member of the House wants to claim the privilege, it shall be a necessary condition that he/ she be present at the session of the House when the alleged breach took place. This essential was put into practise, as it was believed that a person who cannot perform his duties properly is also not entitled to claim the rights.

Proximity

It is an essential condition for establishing a breach of privilege that a member’s action is directly connected with his assigned role, duties, or functions as a legislator; only then can a breach of privilege be established.

Laws related to breach of privilege

Though Clause 3 of Article 105 and Article 194 state that parliament and state legislation, respectively, may from time to time enact a law to define and regulate powers, privileges, and immunity. However, as of now, no such enactment is passed either by parliament or state legislation. Therefore, as per Article 105(3) in the event that no law is enacted for enunciating the legislative privileges, the Republic of India shall follow the regulation persisting before Section 15 of the 44th Constitutional Amendment Act, 1978, came into force.  

Notably, Section 15 of the 44th Constitutional Amendment Act brought some substitution to Article 105 of the Indian Constitution. The present wording of the Article was substituted in place of “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution”. 

Thus, it can be interpreted that India still derives the rules, regulations, and interpretation of legislative privilege in accordance with those of the House of Commons in England. 

Privileges under the Constitution of India

Parliament is one of the four pillars of democracy and contains members representing different regions of the country who have the responsibility to put up the voice of the people in their regions freely in the House. There are certain exemptions from the liabilities, or, to say, immunities and privileges, granted to these elected representatives to serve the purpose, for which they were elected, without any prejudice. The constitution has specifically mentioned privileges and immunity under Article 105 and Article 194 of the Indian Constitution, which are enjoyed by legislators in Parliament and State assemblies respectively. These privileges, powers, and immunities are given to MPs and MLAs not to put their status above law and order but to conveniently and fearlessly discharge their duties bestowed on them by the Constitution of India. 

Specifically, the Indian Constitution bestows only two broad privileges to the Parliamentarians and state legislators namely, Freedom of speech and; Right to publication of proceedings under Article 105 and Article 194. In addition, there are some privileges added through judicial interpretations and continued practises. 

Freedom of speech

Legislators have absolute immunity during the course of proceedings of the House or its committees to express their views on the matter and raise a question about it. If any person or authority disobeys the legitimate order or the rights and immunity of any particular member of the house in a collective sense, it would be held punishable as contempt of the House. It should be noted that this privilege is only applicable to the extent that the words were uttered inside the boundary wall of the parliament or legislature. 

In the case of Kausal Kishor vs. State of Uttar Pradesh & Ors. (2023), Azam Khan, the then Minister in the Uttar Pradesh Government, was accused of going beyond the right to freedom of Speech. He termed the Bulandshahar rape case a ‘politically motivated conspiracy incident’. A writ petition was filed by the survivor under Article 32 of the Indian Constitution with the question of whether further restrictions can be imposed on public officials while exercising their right to freedom of speech. 

The Supreme Court, in this case, has held that it is up to the will of Parliament to enact a “law to restrain citizens or to say public functionaries, in particular, from making disparaging or vitriolic remarks against fellow citizens, having regard to the strict parameters of Article 19(2) and bearing in mind the freedom under Article 19(1) (a) of the Constitution of India.” The court has further held that an opinionated statement made by a political leader can’t be actionable and the government cannot be legally held responsible for the same. However, pecuniary damage may be claimed in an appropriate forum. This statement, however, was not recorded inside the Uttar Pradesh legislative assembly; therefore, the privileges of Section 194(1) cannot be claimed. 

Right of Publication of its proceedings

The right of Parliament or state legislative bodies to publish their own proceedings is specifically provided for under Article 105 and Article 194 of the Constitution. Legislators are immune from court proceedings, either civil or criminal, regarding anything said, any reports published, or votes given by them in the Parliament or in committees. But the publication should not be made with malicious intentions. However, if the publication of a parliamentary report is done without the explicit authorization of the House, it would amount to a breach of privilege, which is a punishable deed. 

In the case of Shri Surendra Mohanty vs. Naba Krishna Choudhary (1958), the editor of a newspaper was called to show cause for an alleged breach of privilege. It was said that an extract of the speech, which was made by the then-Chief Minister of Orissa (Respondent) was published in his daily Newspaper. The speech was about how High Courts, on several instances, have abused their powers, and the Supreme Court has corrected its mistakes committed out of novelty. In this case, the court held the Editor accountable for breach of privilege, in the meantime, the Court has also pointed out contempt of Court by the Chief Minister. 

Other privileges

Apart from the right to freedom of speech and the right to allow the publication of its own proceedings, lawmakers are also entitled to a few other rights, though not specifically mentioned specifically in either Article 105 or Article 194, granted in interpreting these privileges with a wide lens and after giving due consideration to conduct of House of Commons in this regard.  These specially granted rights and immunities include- 

Freedom from arrest

In order to maintain the dignity of the positions held by MPs and MLAs across the country, immunity from the procedure of arrest is given to these elected members. Until they are members of Parliament, State Councils or part of the legislative committees of a state or Central Government, they are immune to arrests in any kind of civil or criminal matters.

Right to exclude strangers from its proceedings and hold secret sessions

Sometimes, to discuss highly qualified matters of national or international importance, the House of Parliament has to conduct a ‘secret session’ from which outsiders are completely forbidden to enter. In such a case, outsiders cannot claim the right to watch the proceedings of the House, as it is their privilege to hold secret sessions. 

Right to ban the publication of its proceedings and reports

Law-making bodies have all rights reserved for the publication of proceedings as per the 2nd part of clause (2) of Article 105 and Article 194. On the same line, they also got the reverse privilege to even ban the publication of its reports, and proceedings in any external source.

Right to regulate internal proceedings

Parliament and state legislatures have their own set of rules incorporated to manage the day-to-day affairs of the Houses. It is a privilege that the way of proceedings in the House is regulated by the House itself rather than being decided by some outsiders.   

Right to punish members or outsiders for contempt

There is no use in defining an offence if the provision for punishment is not incorporated alongside it. There are numerous privileges and immunities granted to lawmakers. Upon any breach or violation of these privileges, the right to punish such offenders also goes to the lawmakers. It can be said that the right to punish members or outsiders for contempt of the House or breach of privilege is, in itself, a privilege. 

Rule governing breach of privilege

For the commencement of proceedings upon breach of privileges in either house of Parliament, a set of rules is formulated from Rule 222 to Rule 228 of the Rules of Procedure and Conduct of Business in Lok Sabha (“Lok Sabha Rules”) for Lok Sabha. And correspondingly, Rule 187 to Rule 203 of the Rules of Procedure and Conduct of Business in the Council of States (“Rajya Sabha Rules”) describe the procedure to be followed after a breach of privilege in Rajya Sabha. As far as state legislatures are concerned, they have their own set of rules regarding the conduct of proceedings on breach of privileges, which are more or less similar to the rules of Parliament. 

The procedure of breach of privilege proceedings in the Lok Sabha and Rajya Sabha are almost similar. Following the steps by step procedure of breach of privilege proceedings. 

Question of privileges

The first step to initiating breach of privilege proceedings is to raise a question of privilege in front of the Speaker of the Lok Sabha or Chairman of the Rajya Sabha, as the case may be. Rules on procedure and conduct of the business of the Parliament Houses lay down the procedure for raising the question of breach of privileges in Chapter XX of the Lok Sabha Rules, which consist of a total of 8 Rules. On the other hand, for the Council of States, Chapter XVI of the Rajya Sabha Rules, consisting of a total of 17 Rules, depicts the procedure for the proceedings for breach of privilege. 

Consent of the speaker

Each member of Parliament is entitled to raise a question on the breach of privileges. However, such rights can be exercised only with the consent of the speaker in Lok Sabha and the chairman in Rajya Sabha. 

The right of members to raise questions of breach of privilege is subject to certain conditions given under Rule 224 of Lok Sabha Rules and Rule 189 of the Rajya Sabha Rules- 

(i) Only one such question can be raised in one sitting of the House;

(ii) Breach of privilege question must be associated with recent event; and

(iii) Such an event requires the immediate intervention of the House. 

Notice to the secretary general 

Rule 223 and Rule 188 of the Lok Sabha and Rajya Sabha Rules, respectively, make provision for serving one-day advance notice for initiative privilege motions. A member who wishes to raise a question of privilege has to serve a written notice to the secretary general, apart from getting the consent of the Speaker or Chairman, as the case may be. That notice has to be served a day before the commencement of the proceedings of the House in which the question of privilege is proposed to be raised. In addition, the above mentioned notice should be clubbed with the document, if any, on the basis of which the question of privilege has to be raised. 

Examination of questions by the committee

Once a question on breach of privilege is raised by a member, the Speaker of the Lok Sabha or Chairman of the Rajya Sabha, as the case may be, shall either decide the matter himself or refer it to the Committee of Privileges for examination, investigation, or report. The committee shall also be responsible for ascertaining the facts and determining the following questions- 

(i) whether there is any breach of privilege; 

(ii) if yes, then what is the nature of the breach; and

(iii) what were the circumstances which led to such a breach; 

Further, the committee also has the responsibility to recommend the House as it may deem fit. 

Legality of breach of privilege

Instances of conflict arose between the House and the Court about decisive rights on the question of the validity of breach of parliamentary privileges because members of the Houses started misusing the immunities and power granted to them to perform their functions as representatives. There have been clashes between fundamental rights granted to citizens under Part- III of the Constitution and immunities given to MPs and MLAs under Article 105 and Article 194. 

For example- recently, a man was arrested for making a video mimicking the speech delivered by MLA and former CM of Maharastra Devendra Fadanvis. He was accused of breaching legislative privilege. In this case, a person’s right to freedom of expression clashes with the immunity and privilege granted to MPs and MLAs. 

Notably, Article 122 and Article 212 state that “the validity of any proceedings in Parliament/ Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure”. Claiming that  Article 122 & Article 212 of the Constitution provide protection from any judicial intervention on the ground of alleged irregular proceedings Parliamentarians argue that the judiciary can’t have decisive rights over the legality of breach of privilege. On the other hand, proponents of citizens’ rights argue that everyone has the freedom of speech and expression guaranteed under Article 19 (1)(a) of the Constitution. Parliamentary privileges cannot be considered above the fundamental rights granted to citizens. Though there are reasonable restrictions on the fundamental right under Article 19 (2), privileges cannot be considered to impose a reasonable restriction on the basic freedom of speech and expression.

Judicial review of breach of privileges 

Though Article 122(1) and 212(1) of the Indian Constitution prohibit the court’s inquiry into matters related to irregularities in the observance of procedures before the legislature. However, in relation to proceedings for breach of privilege, the court can inquire, especially when the matter is related to the Violation of fundamental rights or other constitutional rights, whether these proceedings are culminated by substantive, gross, unconstitutional, or illegality. 

It is an established principle that the Courts are empowered to scrutinise the exercise of legislative privileges, which also include the power of the house of parliament/ state assembly to punish for contempt. Acts of Parliament are prone to judicial review; however, their views must be seen with deference. Actions of Parliament that are considered grossly illegal or unconstitutional are subject to judicial review. The court has, now and then, formulated the parameters for judicial review in relation to the exercise of parliamentary privileges. 

As held in the case of Amarinder Singh vs. Special Committee, Punjab Vidhan Sabha (2011), Captain Amarinder Singh was expelled from the remaining term of the 13th Vidhan Sabha for ‘criminal misconduct, corruption, conspiracy to cause wrongful loss, and abuse of public office’ committed during his tenure as Chief Minister of Punjab in the 12th Vidhan Sabha. This criminal misconduct included unduly favouring one private party by exempting his land from land acquisition. 

The Supreme Court ruling in favour of the appellant has held that for any misconduct committed by the appellant, a proper mechanism mentioned under the Code of Criminal Procedure, 1973, should have been followed. It is beyond the power of the House to expel a member on the ground of a breach of privilege, which is non-existent. In this case, the act of exemption of the land has in no way obstructed the sessions or threatened the integrity of the House. The exercise of the legislative privilege to expel a member by passing a resolution was constitutionally invalid; therefore, an order was made to restore the membership of the appellant in the House. The court stayed the resolution passed to that effect. 

Privileges are subject to rules 

In the case of the State of Kerala vs. K Ajith (2021), the Kerala State Assembly has claimed the privilege and immunities granted under Article 194 of the Constitution so as to withdraw criminal cases against Members of the Legislative Assembly for vandalising the assembly. 

The Supreme Court, while deciding the legality of a claimed breach of privilege, has held that no constitutional immunity of privilege is granted to protect the Members of the House from committing improper acts of Vandalism inside the House. Privileges can be claimed when elected MLAs perform their functions in good faith for the welfare of the public. The court has further held that, though the MLAs had a form of speech and they can’t be charged for anything said inside the House, the act of vandalism can, in no way, be construed as an exercise of the right to freedom of speech and expression.

Punishment for breach of privileges 

Whenever any breach of privilege is committed, Parliament has the power to punish any such breach by moving a privilege motion. Rule 222- 228 of the Lok Sabha Rules and Rule  187 of the Rajya Sabha Rules contain the provisions for privilege motions in the Lok Sabha and Rajya Sabha, respectively. These rules state that all members of the House are empowered to move a question of privilege or privilege motion subject to the consent of the Speaker or Chairman, as the case may be. 

There are several sanctions that a House can impose in cases of misconduct, unethical behaviour, or any disregard for the rules and regulations of the House, which also include breach of privilege. In this regard, Rule 297 of the Rajya Sabha Rules empowers the House to impose sanctions such as censure, reprimand, suspension for a definite period, or any other sanction that the committee considers to be appropriate. 

Suspension or expulsion from the House

A suspension is a form of punishment that is inflicted upon a person for misconduct or disorderly behaviour, along with a breach of privilege. There have been several instances where an MP and MLA have been suspended or expelled for the rest of the session or a certain period of time.
Provision for suspension of members is given in Rule 374 and Rule 374A of the Lok Sabha Rules for Lok Sabha and Rule 256 of the Rajya Sabha Rules for Rajya Sabha. The Speaker or Chairman, as the case may be, may name any member to be suspended in case of wilful disregard for the rules of the House or causing disruption in conducting sessions. After naming, a motion to that effect is moved, and that member is suspended for a period not exceeding the remaining days of that session. 

Though there are similar rules regarding the suspension of members in both the Houses, however, in Lok Sabha, there is an additional rule of automatic suspension. According to Rule 374A of the Lok Sabha Rules, in the event of grave disorder on the part of that member or persistent and willful disregard for the rules of the House and thereby disrupting the business of the House, it may result in the automatic suspension of the member without any motion to that effect.  It should be noted that, unlike regular suspension, the automatic suspension lasts until 5 consecutive sittings of the House or the remaining days of the session, whichever is less. 

Example- The most recent expulsion was made in 2006, and MP Swami Sakshi Maharaj was expelled for gross violation of the code of conduct. The expulsion was made upon the recommendation of the Ethics Committee of the Rajya Sabha. 

Imprisonment 

Imprisonment is a form of punishment that a House can inflict upon any breach of privilege by members of the House or any stranger. Provisions related to imprisonment are given under Rule 229 of the Lok Sabha Rules and Rule 222A of the Rajya Sabha Rules for Lok Sabha and Rajya Sabha, respectively.   

In the case of A.M. Paulraj vs. The Speaker, Tamil Nadu (1985), the editor of a Tamil Monthly magazine was arrested for breach of privileges because he published an article vehemently criticising the members of the legislative assembly. He was later sentenced to 2 weeks of imprisonment upon the recommendation of the privilege committee and the unanimous resolution passed in the assembly. A writ of mandamus is filed in the High Court of Tamil Nadu to restrain the speaker from giving effect to the decision of the Legislative Assembly on the ground that the breach of privilege proceedings have been stretched from the 7th to the 8th legislative assembly. However, The court has held that the petitioner is disentitled to the writ of mandamus. It reasoned out that “it was not open to the petitioner to contend that de novo proceedings should have been taken against him.”

Important case laws 

Ajit Mohan v. Delhi Legislative Assembly, 2021

Facts of the case

In the case of Ajit Mohan vs. Delhi Legislative Assembly (2021), a petition was filed by the Vice President/ Director of Facebook India against a summons issued to him by a committee constituted by the Delhi Legislative Assembly to consider the factors and potential for the eruption of violence in North-east Delhi because of CAA-NRC protests. Thousands of complaints were received against the Facebook platform for the spread of hate speech and disharmony. The Director of Facebook India refused to appear before the committee, stating that the regulation of intermediaries like Facebook falls under the domain of Parliament only.
The issue raised here was whether non-attendance to summons leads to a breach of privilege of the legislative assembly even if the summons was issued to a non-member and investigates subject matters for which it lacks the power to enact law. 

Order of the Court

Three judge bench of the Supreme Court, while rejecting the petition, has held that committees as well as the Delhi Legislative Assembly have a wider function than just enacting laws. Therefore, the court has justified the committee’s conduct of an inquisition and summoning of the executive of Facebook. Further, the bench added that members, as well as non-members, can be equally summoned to appear before the committee, and the non-appearance of the director of Facebook may lead to a breach of privilege notice.

Kalpana Mehta v. Union of India (2018) 

Facts of the case

In the case of Kalpana Mehta vs. Union of India (2018), a pharmaceutical company along with ICMR and a US-based NGO PATH conducted the human trial of a vaccine named Gardasil that aimed to prevent cervical cancer. Since the trial of the vaccine was conducted on minor girls without their parent’s or guardian’s consent, and a few girls died in the process, it attracted the attention of women’s rights organisations. Post that, the Parliamentary Standing Committee (PSC, Department of Health Research) took the issue in hand and reported some discrepancies from the side of the government and ICMR.  

The respondent has claimed to use the said report in the proceeding before the court; however, the state has argued that reports of Parliament can’t be considered in court because of the separation of power and parliamentary privileges granted under Article 105 of the constitution. 

Order of the Court 

Parliamentary material, including acts and records, is public material within the meaning of Section 74 of the Indian Evidence Act, 1872. Therefore, accepting the report of the PSC is not a breach of legislative privilege. As per Section 57 of the Evidence Act, reports of the parliamentary committee are admissible as evidence, and the court may take judicial notice of the same. 

Keshav Singh v. Speaker, Legislative Assembly, 1965

Facts of the case

In the case of Keshav Singh vs. Speaker, Legislative Assembly U. P. (1965), Keshav Singh and his 2 companions were accused of violating the dignity and privileges of Congress MLA, Narsing Narin Pandey. They printed and distributed defamatory pamphlets against him in areas nearby Lucknow Legislative Assembly. He was arrested on a warrant issued by the speaker and produced before the assembly. A writ of Habeas Corpus was filed by Keshav Singh after he was sent to the district jail for 7 days.

Order of the Court

In this case, Allahabad High Court has dismissed the petition and directed that there was no error on the part of the assembly while inflicting imprisonment terms on the petitioner; therefore, he will serve out the remaining days of imprisonment. 

Conclusion

Article 105 and Article 194 of the Indian Constitution deal with privileges, powers, and immunities for Parliamentarians and state legislators, respectively. Violation of any of these powers and immunities is known as a  breach of privilege. There are two categories of privileges and immunities that are granted to parliamentarians or state legislators and their committees. 

Firstly, Individual privileges: these privileges and immunities are granted to all the members of Parliament (MPs) and members of the Legislative Assembly (MLAs). Individual privileges include- 

1. Freedom of speech. Members are immune to any proceedings in the court of law for anything said or voted upon, and 
2. MPs and MLAs are immune to arrest in any civil or criminal case during the sessions of the House. Along with this, arrests cannot be made 40 days before and after the start and end of the sessions. 

On the other hand, collective privilege includes- the privilege of Inquiries; disciplinary powers over members; freedom from jury services; privacy of debate; publication of proceedings under parliamentary authority; and the power to punish for breach. 

We do not have a codified system of law on parliamentary privileges, though the Indian Constitution specifically mentions the power of the parliament to formulate the law in this regard. We still rely on common law principles for parliamentary privileges. Seeing the numerous privilege motions and misuse of immunity granted to parliamentarians, it is high time that the law-making agency considers formulating legislation on this subject. 

Frequently Asked Questions (FAQs) 

What is the difference between breach of privileges and contempt of the house? 

Though these terms are often used interchangeably, they do not convey the same meaning. While breach of privileges is defined as any disregard for power and immunities granted to parliamentarians under Article 105 and to state legislatures under Article 194, contempt of house is any action that is against the dignity and authority of parliamentarians or members of the legislative assembly. 

Is it a breach of privilege to publish a parliamentary report? 

Section 8(1)(c) of the Right To Information Act, 2005 states that information, the disclosure of which would cause a breach of the privilege of Parliament or the State Legislature, can’t be disclosed. However, the 5 judge bench of the Supreme Court in Kalpana Mehta vs. UOI (2018), has unanimously held that it is not a breach of privilege to publish parliamentary reports if it is in the interest of the general public, who has the right to know about the said report as a step towards the governance of the country. 

What are some recent instances of breach of privileges? 

(i) In March 2023, a privilege notice was given against Prime Minister Narendra Modi.  Congress MP KC Venugopal moved a question of privilege before the Chairman of Rajya Sabha (Jagdeep Dhankhar) over the remarks made by PM Modi about  “Nehru’s surname: why the former PM’s family does not use the Nehru title”. 

Note- This privilege notice is given under Rule 188 of the Rajya Sabha Rules. 

(ii) In February 2023, a breach of privilege notice was given to Shiv Sena MLA- Sanjay Raut over his comment on terming the legislative assembly as ‘chor mandal- a group of thieves’. 

(ii) In March 2023, Congress MP Rahul Gandhi was subjected to privilege notice by Lok Sabha MP Nishikant Dubey for “unsubstantiated”, “defamatory,” and “unparliamentary” language used in the motion of thanks on the President’s address. 

What is the possible punishment for the offence of breach of privilege?

A house is authorised to sentence any member or committee associated with the House to punishment for misconduct, disorderly behaviour, a proven breach of privilege, or contempt of the House. Certain types of punishment which are given upon breach of privilege are –

• Imprisonment, 
• Suspension, 
• Expulsion, and
• Reprimand. 

Can an offence of breach of privilege go unpunished?

A person liable for a breach of privilege may also be forgiven or left on warning based upon the discretion of the Speaker or Chairman. For example, shouting slogans from visitors’ galleries might go unpunished, and the person may be allowed to go upon warning if the matter is trivial. 

References 

• https://journalsofindia.com/breach-of-privilege/
• https://cms.rajyasabha.nic.in/UploadedFiles/Procedure/RajyaSabhaAtWork/English/244-310/CHAPTER8.pdf 
• https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1100&context=nlsir 
• http://ijmer.s3.amazonaws.com/pdf/volume11/volume11-issue6(6)/2.pdf 
• https://www.scconline.com/blog/post/2021/07/29/elected-legislators-cannot-claim-privilege/ 
• https://www.businessinsider.in/law-order/these-are-the-14-mps-that-have-ever-been-expelled-from-the-parliament-know-why/slidelist/52026599.cmshttps://indianexpress.com/article/explained/explained-law/parliament-free-speech-article-105-constitution-supreme-court-8437100/
• https://www.livemint.com/news/india/congress-mp-kc-venugopal-moves-privilege-motion-against-pm-modi-sonia-gandhi-rahul-gandhi-11679036490936.htmlhttps://indianexpress.com/article/cities/mumbai/bjp-breach-of-privilege-notice-sanjay-rauts-speech-maharashtra-assembly-8473079/https://indianexpress.com/article/india/bjp-mp-nishikant-dubey-seeks-rahuls-lok-sabha-membership-termination-before-privilege-committee-8489745/

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