Every house of representative around the world has given certain rights to its lawmakers which are called parliamentary privileges. The word privileges in easy language means special power, immunity or protection. Nowadays privilege motion has become a point of issue in Indian courts as a matter of heated politics. The real question of right and duty lies in this very important debate.
WHEN IS A PRIVILEGE NEEDED?
Lawmakers need to work with freedom, in absence of fear and favour. For the lawmakers to work with full honesty and dedication the parliament has given some special powers to them. A privilege and immunity also applies to every person attached to the house having a right to participate in the proceedings of the house or committees. It would not be wrong to say that freedom to speech is at heart of the privileges and immunity of lawmakers.
The lawmakers are immune from criminal liability for whatever they say in the parliament, they are immune from getting arrested or we can say that even in criminal cases their is a different procedure to be followed before arresting them. These privileges are subject to constitution of India that means it is not an uncanned horse and there is no unlimited power.
WHAT IS A PRIVILEGE MOTION?
Chapter XX (Rule 222 to 228) of the Lok Sabha and Rule 187 to 203 of the Rajya Sabha Rules of Procedures and Conduct of Business enumerates the proceedings regarding privileges. These rules provide how a privilege motion is to be initiated in a house, the rules also enumerate when the motion is adopted or withdrawn, it informs regarding discretion of the speaker, it has provisions regarding the privilege committee which supervises the whole investigation and brings forth the conclusion for the house.
WHEN DOES BREACH ENSUES?
What constitutes breach is not mentioned specifically and yet a statute has not been made which is due now for more than seven decades. When any member of house does not acts in accordance of the rules of the house or does anything in violation of the rights bestowed on them then breach of privilege takes place. Such breach is contempt of house and the speaker has exclusive jurisdiction over these matters.
The following provisions provide a guiding route in such matters:
Article 105 (3) and article 194 (3) of the Constitution Of India which says that till a law is made in regard to power and privilege of the parliament members should be as such defined from time to time and as before forty second amendment. Rules of Procedure and conduct of business in Lok Sabha and the Rajya Sabha enumerate a long list of details pertaining to privileges.
COMMITTEE OF PRIVLEGES
Chapter XXVI enlists the working of committee of privileges, its formation, deciding members, preparation of report, presentation of report in the house for questioning and debate. The reports are example of committee reports as present on the website of Lok Sabha regarding investigation of breach of privileges. (a) Third Report of the Committee of Privileges, laid on the Table of the House on 19 May, 2006- in this report a member was found to be in gross breach of privilege and contempt of house by imputing motives to the speaker while performing of duties ;(b) Twenty Third report of Committee of privileges, presented to speaker on May 1st 2009- this report is regarding issuing the record of video to media before admitting it to the committee as evidence and thus found in violation of the rules.
The judicial decisions have helped a lot in understanding the legality of the privilege motions. Though privilege motions are under exclusive jurisdiction of the speaker of the house the judiciary under its power to judicial review has always cleared the doubts of the issue as the law is yet to be made. In Lokayukta,Justice Ripusdudan Dayal (retired) and ors vs State of Madhya Pradesh and ors. It was held held that privilege can only be invoked to work without hindrance and that it cannot be used as shield to protect oneself from criminal prosecution. In a very recent case Ashish Shelar & Ors Versus The Maharashtra Legislative Assembly & Anr.The court while using its power under judicial review striked the expulsion of the members in excess of the allowed time period by the speaker of Maharashtra State legislative assembly. In The State of Kerala Versus K. Ajith & Ors.
The aspects of criminal procedures were touched upon and issues like privilege to commit acts of public destruction, immunity from publication of proceedings of house and admissibility of video recording as evidence were discussed. In Ajit Mohan & Ors. Versus Legislative Assembly National Capital Territory Of Delhi & Ors matters pertaining to privilege issue, fundamental rights and legislative competence were discussed. The essence of the judgement has been summarized in nine points by the court, specially when one of the party is state assembly and a committee is formed thereunder then it should be careful of not encroaching upon any aspect under domain of entry 1 and 2 of list II of seventh schedule. Some of the important cases that have been repeatedly been referred to by courts in these matters and in the before mentioned cases are N. Ravi v. Legislative Assembly, Special Reference No. 1964, Raja Ram Palv. Hon’ble speaker, Lok Sabha & Ors.
The need for a law is need of the hour. Parliament needs to take this issue with utmost priority and define in clear terms what a privilege is and what will constitute breach so that Supreme Court can dedicate its precious time in only solving very tough issues of the area. The tussle between ruling party and opposition is very evident in all the issues of the breach of privilege. Most of the time a magnanimous heart of the ruling party can stop many issues of this nature. These privilege are a very necessary armoury for the lawmakers who dare to speak the truth that is not tasteful for the majority of population of the nation but all care must be taken to ensure that principle less privilege (ie. One not having nexus with parliamentary functions and public interest) must not be allowed. At the end the crux is that parliament and its power is to serve people not the individual interest of lawmakers.
http://loksabhaph.nic.in/writereaddata/ParliamentProcedure/Motions%20and%20Resolutions.pdf (page 12)  http://18.104.22.168/lsscommittee/Privileges/14_Privileges_23.pdf  WRIT PETITION (CIVIL) NO.797 OF 2021  Criminal Appeal No 697 of 2021 @ SLP (Crl) No 4009 of 2021  WRIT PETITION (C) NO.1088 OF 2020
This article is written by Poonam Maurya, postgraduate from Amity University.