On Wednesday, Bharatiya Janata Party member of Parliament Nishikant Dubey wrote to Lok Sabha Speaker Om Birla asking for either the parliamentary committee of privileges or a special committee to look into comments alleged to have been made by Congress member of Parliament Rahul Gandhi and to consider expelling him from the Lok Sabha.
Privileges are rights and immunities given to the state and Central legislatures and their members. While on a tour to the United Kingdom this month, Gandhi made several remarks about the Indian democracy being under attack and how some institutions, such as Parliament are not functioning independently. He also said that microphones in Parliament were often switched off while he was speaking. These comments have been the subject of a breach of privilege notice by Dubey.
What is a breach of privilege?
The Lok Sabha and Rajya Sabha and its members have special rights and immunities to ensure the independent, uninterrupted functioning of Parliament. Citizens, and even members of Parliament can be held guilty of breach of privilege if they violate these lines.
Article 105 of the Constitution lays down the privileges for both houses of Parliament and its members. It says that the houses should have freedom of speech and that members cannot be held liable in any court proceedings for what they say or how they vote in the Parliament.
While some privileges are explicitly defined, several are undefined and not codified. Till the time the legislature passes a law governing breach of privileges, legislatures in India have the same privileges as the House of Commons in the United Kingdom.
Even defamatory speeches and writings on the proceedings in the Parliament or the character of any of its members can constitute a breach of privilege.
Parliament has wide powers to punish these breaches. It can range from a mere reprimand to imprisonment. Members of Parliament can also be suspended or expelled from the house for breach of privilege.
What is the procedure for breach of privilege?
Under Rule 223 of the Rules of Procedure and Conduct of Business in Lok Sabha, any member of the house can give notice to the secretary-general regarding raising a question on breach of privilege. The Speaker has the power to give consent for the matter to be discussed.
The members of the Lok Sabha can refer the matter to the committee of privileges under Rule 226. Both houses of Parliament have a committee of privileges consisting of 15 members that are nominated by the Speaker. Apart from this, under Rule 227, the Speaker has also the power to refer this matter to the committee of privileges to investigate the matter and prepare a report on the action that should be taken.
This report is then tabled before the house, which takes a decision on the recommendations of the committee.
Dubey has, alternatively, asked that a special committee should look into remarks made by Gandhi, along the lines of a committee formed in 2005 that held that 11 members of Parliament should be expelled for taking money to ask questions in the Parliament.
These special committees are not under any particular rule that governs the business of the Lok Sabha. “It is the inherent power of the house [Lok Sabha] to appoint a committee to investigate a matter,” said PDT Achary, former secretary general of the Lok Sabha.
“The membership of these committees depends on the strength of each political party in the house,” he said. Thus, the Bharatiya Janata Party has a majority in the committee of privileges and will have a majority in any special committee that may be constituted.
Is breach of privilege common?
According to Achary breach of privilege is not widely used. “Very few of the notices that the Speaker receives ends up going to the committee of privileges [in the first place],” he added.
However, there have been several instances where legal commentators have criticised Central and state legislatures for misusing breach of privilege powers to silence dissidents, including the media. In 2018, Lok Sabha got the Hindustan Times to apologise for misreporting about the attendance of five members of Parliament.
In 2017, two journalists in Karnataka were sentenced to one-year imprisonment and a Rs 10,000 fine for writing allegedly defamatory articles about state legislators. This was later stayed by the state’s High Court.
The judiciary is usually hesitant to interfere in these matters. However, the Supreme Court has previously held that when fundamental rights, such as personal liberty are getting in conflict with parliamentary privileges, the former would prevail.
Presently, the committee of privileges is examining another complaint against Gandhi for making “derogatory, unparliamentary and incriminatory statements” in the Parliament in February. Gandhi had made allegations about Prime Minister Narendra Modi for giving unfavourable treatment to billionaire Gautam Adani, following the Hindenburg report, which accused the billionaire of pulling the “largest con In corporate history”.
In addition to this, the committee of privileges of the Rajya Sabha is currently examining a breach of privilege motion against 12 Opposition members of the Rajya Sabha for their alleged disorderly conduct. This was referred to the committee by Vice-President Jagdeep Dhankar.