Whose Privilege, Your Honour?
By Vivek K Agnihotri
Through a Parliamentary Bulletin issued by the Rajya Sabha Secretariat on February 18, 2023, Members were informed that the Chairman, Rajya Sabha, had referred a question of alleged breach of privilege. This arose due to gross disorderly conduct by 12 Members in violation of the rules and etiquette of the House. They repeatedly entered the well of the Council, shouted slogans and persistently and willfully obstructed the proceedings, compelling the Chair to repeatedly adjourn the sittings of the Council.
The reference was made under Rule 203 of the Rules of Procedure and Conduct of Business in the Rajya Sabha (Rules, for short) to the Committee of Privileges (CoP) for examination, investigation and report. Another bulletin issued on the same day stated that the Chairman had referred a question of alleged breach of privilege by one of the Members arising out of non-adherence to the directions of the Chair vis-à-vis repeated submission of identical notices under Rule 267 to the CoP under Rule 203 for examination, investigation and report.
The fountainhead of the privileges of Parliament, its Members and Committees is Article 105 of the Constitution. It provides for freedom of speech in Parliament and states that no MP shall be liable to any proceedings in any court in respect of anything said or vote given by him in Parliament or any committee thereof. It also states that the Parliament may provide for other powers, privileges and immunities to itself and its Members by enacting a law. However, no such law has been legislated so far.
Some of the actions which conventionally constitute breach of privileges of Parliament include premature publication of proceedings, publication of expunged proceedings and misrepresentation of proceedings, among others. Similarly, a Member cannot be prevented from attending the sittings of Parliament or its Committees. He also enjoys immunity from service of legal process and arrest within the precincts of the House, irrespective of whether it is in session or not. It is a breach of privilege and contempt of the House to make speeches or to print or publish any libels reflecting on the proceedings of the House or the character or conduct of a Member as MP.
The power of Parliament to punish for breach of privilege or its contempt by private individuals is considered necessary in order to enable it to discharge its functions and safeguard its authority. Without such a power, Parliament would sink into utter contempt and inefficiency. This power has been judicially upheld in a number of court cases. The period for which the House can commit an offender to custody or prison for contempt is limited to the duration of the session of the House, that is, till it is prorogued.
The penal power of Parliament is exercised not only against an outsider, but also against a Member of the House. The Rules prescribe the rules (235-241) to be observed by Members and empower the Chairman to preserve order and enforce his decisions in the House. He can order withdrawal (Rule 255) and suspension (Rule 256) of Members to enable him to enforce discipline on them if they resort to disorderly behaviour, disregarding the authority of the Chair and abuse the rules by willfully obstructing the business of the House. If an unruly Member does not withdraw from the House even after the direction of the Chair, the latter may name him and put forward a motion to suspend him.
The Rules provide for Members to raise the question involving a breach of privilege either of a Member or of the Council or of a Committee. The Rules further provide that the question of privilege should be restricted to a specific matter of recent occurrence which requires the intervention of the Council. If the Chairman gives his consent, the Council may consider the question and come to a decision or refer it to the CoP on a motion made in that regard. Rule 203 provides that notwithstanding anything contained in the Rules, the Chairman may suo moto refer a question of privilege to the CoP for examination, investigation and report.
The CoP, while examining a question of privilege, has to determine whether a breach is involved and, if so, the nature of it and the circumstances leading to it. It will make such recommendations as it may deem fit. The procedure adopted by the CoP is somewhat analogous to court proceedings. The committee has the power to hear both sides, and to take evidence or call for papers, records and documents. It is required to submit its report within the time fixed by the Council or one month, as the case may be, but may seek an extension. Once the report of the Committee is presented to the Council, a motion is moved by the chairman or any member of the Committee to take it into consideration. If the report is carried, the recommendations of the Committee are again put to vote before they are sought to be implemented.
There have been a few occasions when the House has agreed to the Committee reports wherein it recommended punishment for a person found guilty of contempt of the House/breach of privilege. However, if the report says that no breach of privilege is involved or committed or that no further action needs to be taken by the House in the matter or that the matter need not be pursued further, then, no further proceedings are initiated. Often, the reports of the Committee have come to the conclusion that the offender has regretted his offence and tendered an unqualified apology or that it does not behove the dignity of the House to proceed further in the matter. The last occasion when a punishment was recommended by the CoP of the Rajya Sabha was way back in 1980, when Garg Brothers, publishers, were reprimanded for publishing a ready reckoner of the budget before the Finance Bill was returned by the Rajya Sabha.
As regards taking action against its own Members for unruly conduct in the Council, in its 54th report presented to the House on July 7, 2009, the CoP considered two matters pertaining to complaints against those allegedly interrupting another Member during a speech or preventing a Member from raising his question due to continuous interruptions. The Committee observed that though such incidents were not uncommon in both Houses, they brought down the image of the Parliament and its Members in the eyes of those very people who had sent them to the highest institution of democracy. The Committee was of the view that every Member has the right to express his views in the House, but that does not give him the right to prevent other Members who have a similar right to speak when called by the Chair. The Committee was of the view that while agitating over a particular matter, Members should not violate the Rules of the House and that there were ways to express dissent without violating them. The Committee urged the Members to be more circumspect and abide by the directions of the Chair to avoid recurrence of such incidents.
The second bulletin pertains to repeated submission by a Member of identical notices under Rule 267. This Rule provides that any Member may, with the consent of the Chairman, move that any rule may be suspended to a motion related to the business listed before the Council for that day and if the motion is carried, the rule shall be suspended for the time being.
In the past, on many occasions, this Rule was often invoked to seek the permission of the Chair to take up discussion on a particular matter in the Rajya Sabha by suspending Question Hour as soon as the House assembled. At that time, Question Hour used to be the first item on the agenda of the Council for the day. In view of frequent disruptions on this account, the Council took the decision to move Question Hour from 11 am to noon and the first hour of the day is now devoted to Zero Hour which earlier used to be scheduled at noon.
Zero Hour is a unique innovation of the Indian Parliament. It provides an opportunity to the Members to raise any matter in the House, with the permission of the Chair, which they think deserves the attention of the House or the Treasury Benches. Originally, it used to follow Question Hour. There is no rule relating to Zero Hour in the Rules of either House of the Indian Parliament. It is more a matter of convention. As there is no rule relating to Zero Hour, its suspension under Rule 267 to take up any other matter does not naturally arise. Thus, the repeated submission by a Member of identical notices for its suspension to take up some other matter was prima facie misconceived.
Whether the CoP now will treat the observations in its 54th report of 2009 as a precedent in the present cases or whether it will charter a new course, remains to be seen.
—The author is former Secretary-General, Rajya Sabha