Breach of privilege

Topic: Parliamentary Procedure, Committees and Privileges · NCERT: Class 11, Ch 5 "Legislature"

Meaning

Breach of privilege happens when someone breaks one of the specific special rights or immunities (protections from legal action) of a House of Parliament, its committees or its members. An example is arresting a member inside the House's grounds without permission. The House itself decides whether a breach took place, and it can punish members and outsiders alike.

Privileges exist so that Parliament can work without obstruction. They are not personal favours to MPs. The power to punish a breach is how the House protects its ability to represent the people and hold the executive to account.

Explanation

What counts as a breach, and how it differs from contempt

• Breach of privilege means violating a specific privilege, either:
• an individual privilege: freedom of speech in the House, immunity for speeches and votes, freedom from arrest in civil cases during a session and for 40 days before and after it (CPC s.135A), or exemption from jury service and from appearing as a witness while the House sits [3]; or

• a collective privilege: the right to publish proceedings or keep them unpublished, to exclude strangers, to regulate its own affairs, to be told at once when a member is arrested, and the rule that no arrest or service of legal papers can happen in the precincts (the House's buildings and grounds) without the presiding officer's permission.

• Contempt of the House is the wider idea. It covers any act or omission that obstructs the House, its members or its officers in their work, even if no listed privilege is broken. Examples:

• deliberately misleading the House;
• insulting the House in speech or writing;
• bribing or threatening a member;

• disobeying a summons from a committee.

• Key rule: every breach of privilege is also a contempt, but not every contempt is a breach.

• Who can commit it: members and non-members. Officials, journalists and private citizens can all be punished.

How a privilege case moves (step by step)

1. Notice. A member gives written notice to the Secretary-General. This is a privilege motion, meaning a motion claiming that a privilege has been breached or the House held in contempt [3]. - Lok Sabha: Rules 222–228. Rajya Sabha: Rules 187–203 [3].

2. Consent of the Speaker or Chairman (compulsory). This stops the House's time being wasted on matters it cannot take up [3]. - The presiding officer checks only for a prima facie case, meaning a complaint that looks valid enough at first sight to look into. They do not decide whether a breach actually happened [3]. - The conditions are: only one question of privilege at one sitting, a specific and recent matter, and a need for the House to step in [3].

3. Leave of the House. Once the House allows the matter to be raised, it can either: - decide the matter itself; or - on a motion by any member, send it to the Committee of Privileges and wait for the report [3].

4. Suo motu reference (an alternative route). The presiding officer can send a question of privilege straight to the Committee without first putting it before the House [3]. Suo motu means "on their own", without a formal request.

5. Committee inquiry. The Committee examines the matter, hears the people involved and reports. It is quasi-judicial, meaning it works somewhat like a court. - Lok Sabha: 15 members, nominated by the Speaker, who also chooses the head. - Rajya Sabha: 10 members, nominated by the Chairman, headed by the Deputy Chairman.

6. The House decides and punishes by passing a motion.

Punishments and limits

• Punishments, from mildest to most severe:
• admonition (a warning);
• reprimand (a formal rebuke);
• suspension from the House;
• expulsion (loss of membership);

• imprisonment, which ends when the session ends.

• Limits on the power:

• The House is not the only judge. Courts can examine a legislature's jailing of a citizen for contempt (Keshav Singh, 1964 Reference).
• Art. 122 protects proceedings from court challenge only on the ground of procedural irregularity (a failure to follow the House's own procedure). Courts can still review punishments that are grossly illegal, irrational or unconstitutional (Raja Ram Pal, 2007).
• Necessity test. A privilege must be needed for the House to function. Taking a bribe is never protected (Sita Soren, 2024) [2].
• Freedom from arrest covers civil cases only. Arresting a member for a crime or under preventive detention (holding someone to stop a likely future offence, without trial) is not a breach. The House must still be told at once.

In the Constitution and practice

• Constitutional basis:
• Art. 105: privileges of Parliament, its members and its committees. Art. 194 gives state legislatures the same privileges.
• Art. 105(3): privileges other than speech and immunity are to be "defined by law". Parliament has never passed such a law, so the power to punish a breach still rests on old practice.
• The original text linked these privileges to the UK House of Commons as on 26 January 1950. The 44th Amendment (1978) removed that reference without changing the content [7].
• Art. 105(4): privileges also cover non-members who have the right to speak in the House, such as ministers and the Attorney General. The President is not covered.
• Art. 118: each House makes its own rules. This is the basis for the privilege rules and the Committee of Privileges.

• Art. 361A (added by the 44th Amendment) and the Parliamentary Proceedings (Protection of Publication) Act 1977 protect true reports of open proceedings. A report made with malice is not protected and can amount to a breach.

• Key instances of punishment:

• Subramanian Swamy (1976): expelled from the Rajya Sabha for conduct that brought the House into disrepute [3].
• Indira Gandhi (December 1978): the 6th Lok Sabha found her guilty of breach of privilege and contempt for obstructing officials during an inquiry linked to the Maruti company.
  • She was expelled and briefly jailed until the session ended [3].
  • The 7th Lok Sabha rescinded (cancelled) the resolution in 1981.
• Cash-for-query (December 2005): a sting operation filmed MPs taking money to ask questions. 11 MPs were expelled, 10 from the Lok Sabha and 1 from the Rajya Sabha [3].

• Mahua Moitra (8 December 2023): expelled from the 17th Lok Sabha on the Ethics Committee's First Report. The charges were "unethical conduct" and "contempt of the House" for sharing her Members' Portal login, and conduct unbecoming of an MP for accepting gifts [4][5].

• Landmark cases:

• M.S.M. Sharma (Searchlight, 1959): publishing parts of a speech that had been expunged (removed from the record) was a breach. Privileges under Art. 105(3)/194(3) prevail over press freedom under Art. 19(1)(a).
• In re Keshav Singh (1964 Reference, decided 1965): the UP Assembly jailed a citizen for contempt, and the case reached the Supreme Court as a presidential reference under Art. 143. The court held that the House is not the sole judge of its privileges and that judges cannot be punished for hearing such cases.
• Raja Ram Pal (2007): upheld the 2005 expulsions. The Houses have the power to expel, subject to limited judicial review.
• Sita Soren (4 March 2024, 7 judges): overruled P.V. Narasimha Rao (1998). A legislator cannot claim immunity under Art. 105/194 from prosecution for bribery linked to a vote or speech. The offence is complete once the bribe is accepted [2][6].

Don't confuse with

• Contempt of the House: the wider category. A breach of privilege breaks a specific listed privilege. Contempt is any obstruction of the House, such as misleading it or ignoring a committee summons.
• Speaker's consent vs. the House's finding: the Speaker or Chairman only decides whether there is a prima facie case to admit the motion [3]. Whether a breach actually happened, and the punishment, are decided by the House, usually after the Committee of Privileges reports.
• Unethical conduct (Ethics Committee): the Ethics Committee examines misconduct that may not be a breach of privilege. It was set up in the Rajya Sabha in 1997 [3] and in the Lok Sabha in 2000. Privilege cases go to the Committee of Privileges.
• Contempt of court: this protects the authority of courts. Breach of privilege protects the legislature. When the two clashed in Keshav Singh, the Supreme Court held that judges cannot be punished by a House for hearing such cases.

Prelims Hooks

• Privilege notices: Lok Sabha Rules 222–228, Rajya Sabha Rules 187–203. The presiding officer's consent is compulsory and checks only for a prima facie case [3].
• Committee of Privileges: Lok Sabha 15 members (nominated by the Speaker). Rajya Sabha 10 members, headed by the Deputy Chairman.
• The presiding officer can refer a privilege question suo motu to the Committee, without first placing it before the House [3].
• Trap: imprisonment for breach ends when the session ends. Indira Gandhi was expelled and jailed in 1978, and the resolution was rescinded in 1981.
• Searchlight (1959): privilege prevails over Art. 19(1)(a). Keshav Singh (1964, Art. 143 reference): the House is not the sole judge of its privileges.
• Art. 122 shields only procedural irregularity. Illegal or unconstitutional punishments can be reviewed (Raja Ram Pal, 2007).

Mains Points

• The House as both victim and judge.
• Because Art. 105(3) has never been codified (written into a law), the House defines the breach, hears the case and punishes it. This raises fears of arbitrary action against journalists and critics.

• Codification, perhaps on the model of Australia's Parliamentary Privileges Act 1987, would bring certainty and protect press freedom. The cost is flexibility, and the law would become open to Art. 13 review.

• Due process in privilege and ethics inquiries.

• The 2023 Moitra expulsion drew criticism: there was no cross-examination, no written code of conduct, and the decision was taken along party lines [5].

• Reform options include a statutory code of conduct, a right to legal representation, committees with members from all parties, or an independent ethics commissioner like the UK's Parliamentary Commissioner for Standards.

• From "the House alone decides" to the necessity test.

• Keshav Singh (1964), Raja Ram Pal (2007) and Sita Soren (2024) together show that privileges exist for the House's work, not for members' personal benefit.
• Parliament keeps its power to punish real obstruction. Courts step in only against gross illegality and to stop privileges being used as a shield for corruption [2].

Related concepts

• Parliamentary privileges
• Individual privileges
• Collective privileges
• Bar on courts inquiring into parliamentary proceedings
• Contempt of the House
• Privilege motion
• Committee of Privileges
• Ethics Committee
• Keshav Singh case
• Raja Ram Pal case

Read more

• Parliamentary privileges, contempt and ethics