After being the target of communal slurs on the floor of the Lok Sabha by Bharatiya Janata Party MP Ramesh Bidhuri on Friday, Bahujan Samaj Party MP Kunwar Danish Ali has given notice to Lok Sabha Speaker Om Birla for breach of Parliamentary privilege against Bidhuri.

All parliamentarians are vested with privileges that help them conduct their Parliamentary work efficiently. This includes legal immunity for anything said within Parliament, as provided for by Article 105(2) of the Constitution. As a consequence, Bidhuri is immune from any penal consequences for his utterance.

Article 105(3) states that the “powers, privileges and immunities” of both Houses of Parliament and their members are to be defined by Parliament by law. Since Parliament is yet to enact such legislation, what constitutes Parliamentary privilege in India is not codified and largely guided by convention followed by the British House of Commons, in addition to customs and conventions that have evolved in the last 75 years of Parliamentary practice in India.

However, a publication by the Rajya Sabha on Parliamentary Privileges provides a handy tool to better understand what constitutes Parliamentary privilege as well as a breach of it.

It says that any speech reflecting on the character or conduct of an MP amounts to a breach of Parliamentary privilege and contempt of the House. Attempts to intimidate an MP in their parliamentary conduct amount to breach of privilege too.

However, there is nothing in either the Rules of Procedure and Conduct of Business in Lok Sabha or in the Rajya Sabha publication specifically concerning the use of abusive words or expletives against one MP by another.

“I have not come across any such situation in the past where such foul words were used in the Parliament,” said former Lok Sabha Secretary General PDT Achary. He said that there is nothing in the Lok Sabha or Rajya Sabha Rules of Conduct to deal with such a scenario because “nobody could have imagined something like this happening in Parliament”.

What is the consequence of breach of Parliamentary privilege?

Ali has given notice under Rule 222 of the Lok Sabha Rules, and asked the speaker to refer his complaint to the Lok Sabha’s Committee of Privileges under Rule 227 of the Lok Sabha Rules.

Rule 222 says that a member may, “with the consent of the Speaker, raise a question involving a breach of privilege either of a member or of the House or of a committee”. Rule 227 says that despite anything contained in the rules, “the Speaker may refer any question of privilege to the Committee of Privileges” to be examined or investigated.

The Lok Sabha Privileges Committee is chaired by BJP MP Sunil Kumar Singh, and consists of 13 other MPs as members: seven from the BJP, and one each from the Indian National Congress, the Dravida Munnetra Kazhagam, the All India Trinamool Congress, the Shiv Sena, the Yuvajana Sramika Rythu Congress Party and the Biju Janata Dal.

“Once the breach of privileges notice is submitted to the Speaker, he examines it and then sends it to the Privileges Committee if he deems it admissible,” said Achary. “The Committee then takes a call on whether to recommend action.”

The committee prepares a report recommending the course of action to be taken against the person responsible for breach of privilege and presents it to the Lok Sabha within a period fixed by the Speaker. In the absence of any fixed time, the committee must present its report to the Lok Sabha within a month of the reference by the Speaker.

The Lok Sabha then decides whether to accept the committee’s recommendations, partly or in full.

According to the Rajya Sabha publication on Parliamentary privilege, the House can take a range of actions against its members for breach of privilege, ranging from an admonition to imposing fines, and even suspension or expulsion from the House.

The power to expel is, understandably, exercised rarely. This has been done on only a handful of occasions. In November 1976, then-Bharatiya Jana Sangh MP Subramaniam Swamy was expelled by the Rajya Sabha for bringing Parliament to disrepute by giving interviews to foreign publications that were deemed “anti-India propoganda”.

In December 2005, 10 Lok Sabha MPs and a Rajya Sabha MP were expelled by the Houses for allegedly accepting money for raising questions in Parliament, as revealed in a sting operation by Cobrapost. In March 2006, the BJP’s Sakshi Maharaj, then with the Samajwadi Party, was expelled from the Rajya Sabha for the allegedly charging a commission for the improper use of his MP Legislative Area Development funds, as captured in a sting operation by Star News.

It is also open to the House to order the imprisonment of an offender guilty of breach of privilege, although it has never resorted to this.

However, usually when the offender expresses regret and tenders an unqualified apology, the House does not proceed in the matter, regardless of whether the House or the committee had found that a breach of privilege or an act of contempt of the House had been committed.

Outside Parliament

If Bidhuri had said what he said to Ali to him or to anyone else outside the Parliament, he would not have been protected by the legal immunity granted by Article 105(2) of the Constitution. Instead, he would have been liable to be booked under the Indian Penal Code’s section 298 (uttering words etc. with deliberate intent to wound religious feelings), section 500 (punishment for defamation) and section 506 (punishment for criminal intimidation).

The first is punishable with imprisonment up to one year, and the latter two carry the penalty of imprisonment up to two years each. All three offences may also attract fines.