Parliamentary privileges, contempt and ethics

Detail

1. Meaning and purpose

• Parliamentary privileges are special rights and immunities. They let the Houses, their committees and their members work without obstruction. An immunity is protection from legal action.
• Members get them because they are needed for the work of the House. They are not personal favours.
• The Rajya Sabha's own manual describes them as special rights that let members and the legislature carry out their constitutional functions effectively [3].

• NCERT Class 11 says their "main purpose" is to let legislators represent the people and control the executive.

• Who gets them:

• Each House as a body, its committees, and its members.
• Non-members who have the right to speak in the House, such as Union ministers and the Attorney General (Art. 105(4)).

• The President is not covered. The President is part of Parliament but does not sit or speak in either House.

• Constitutional sources:

Article	What it covers
Art. 105	Privileges of Parliament, its members and its committees
Art. 194	The same privileges for state legislatures
Art. 118	Each House makes its own rules of procedure
Art. 121	Parliament cannot discuss the conduct of a Supreme Court or High Court judge, except on a motion to remove the judge
Art. 122	Courts cannot question proceedings on grounds of procedural irregularity
Art. 361A	Protects anyone who publishes a true report of proceedings

2. The four clauses of Article 105

• Art. 105(1): freedom of speech in Parliament.
• It is subject to the Constitution and to the rules of the House.

• Example limit: Art. 121 bars any discussion of a judge's conduct.

• Art. 105(2): immunity from court action.

• No member can be taken to court for anything said or any vote given in Parliament or its committees.

• No one can be taken to court for publishing a report, paper, vote or proceeding under the authority of the House.

• Art. 105(3): other privileges.

• These are to be defined by law made by Parliament.
• Until such a law is made, they stay as they were.
• Original text: they were the same as those of the UK House of Commons on 26 January 1950.
• The 44th Amendment (1978) removed the reference to the House of Commons. The new wording is "those of that House … immediately before the coming into force of section 15 of the 44th Amendment". The content stayed the same; only the foreign reference went [8].

• Parliament has never passed such a law, so most privileges are still uncodified.

• Art. 105(4): extends clauses (1) to (3) to anyone who has the right to speak in the House, such as ministers and the Attorney General.

3. Individual privileges (each member enjoys these)

• Freedom of speech in the House (Art. 105(1)), within the rules and Art. 121.
• Immunity for speeches and votes (Art. 105(2)).
• Freedom from arrest in civil cases:
• It runs during a session and for 40 days before and 40 days after it (Code of Civil Procedure, s.135A). The same applies to sittings of committees [3].

• It gives no protection from criminal arrest or preventive detention. Preventive detention means holding a person to stop a likely future offence, without a trial.

• Exemption from jury service and from appearing as a witness in court while the House is sitting [3].

4. Collective privileges (the House as a whole enjoys these)

• Publishing proceedings, or keeping them unpublished.
• Art. 361A was added by the 44th Amendment (1978).
• The Parliamentary Proceedings (Protection of Publication) Act 1977 also applies.

• Both protect true reports of open proceedings. A report made with malice is not protected.

• Excluding strangers and holding secret sittings.

• Regulating its own internal affairs and making its own rules (Art. 118).
• Punishing breach of privilege and contempt, whether the person is a member or an outsider.
• Being told at once when a member is arrested, detained or convicted.
• No arrest and no service of legal papers (civil or criminal) inside the precincts of the House without the presiding officer's permission. The precincts are the House's buildings and grounds.
• Bar on courts inquiring into parliamentary proceedings (Art. 122):
• Courts cannot question proceedings on the ground of procedural irregularity, meaning a failure to follow the House's own procedure.
• Courts can still review proceedings that are illegal or unconstitutional (Raja Ram Pal, 2007).

5. Breach of privilege and contempt of the House

• Breach of privilege: violating one of the specific privileges listed above. Example: arresting a member in the precincts without permission.
• Contempt of the House: any act or omission that obstructs the House, its members or its officers in their work. Examples:
• deliberately misleading the House;
• insulting the House in speech or writing;
• bribing or threatening a member;

• disobeying a summons from a committee.

• Key point: every breach of privilege is a contempt, but not every contempt is a breach. Contempt is the wider category.

• The House itself decides whether there was a breach or contempt. NCERT notes that the presiding officer has the final say on whether a privilege motion is admitted.

6. How a privilege case moves

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

2. Consent of the presiding officer (Speaker or Chairman). - Consent is compulsory, so that the House's time is not spent on matters that cannot be taken up [3]. - The Speaker or Chairman checks only whether there is a prima facie case, meaning the complaint looks valid enough at first sight to inquire into. They do not decide whether a breach actually happened [3]. - Conditions for admission [3]:

   • only one question of privilege at one sitting;
   • it must be about a specific, recent matter;
   • the matter must need the House's intervention.

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

4. Suo motu reference. The presiding officer can also send any question of privilege directly to the Committee without first placing it before the House [3]. Suo motu means acting on one's own, without a formal request.
5. Committee inquiry. The Committee of Privileges examines the matter, hears the people involved, and reports. It is quasi-judicial, meaning it works somewhat like a court.

	Lok Sabha	Rajya Sabha
Members	15	10
Who appoints	Nominated by the Speaker	Nominated by the Chairman
Head	Chosen by the Speaker	Deputy Chairman

6. House decides the punishment by passing a motion. Possible 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.

7. Major cases 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, about obstructing officials during an inquiry linked to the Maruti company.
• She was expelled from the Lok Sabha and briefly jailed until the session ended [3].

• The 7th Lok Sabha rescinded (cancelled) the resolution in 1981.

• Cash-for-query sting, December 2005:

• A sting operation filmed MPs taking money to ask questions in Parliament.
• 11 MPs were expelled: 10 from the Lok Sabha and 1 from the Rajya Sabha [3].
• The expulsions were upheld in Raja Ram Pal (2007).
• NCERT Class 11 uses this sting in a "thought bubble" on members' conduct.

8. Ethics committees

• An Ethics Committee watches over the moral and ethical conduct of members. It examines complaints of unethical behaviour, which may not count as a breach of privilege.
• Rajya Sabha: set up in 1997 [3]. It oversees a Code of Conduct for members.
• Lok Sabha: an ad hoc committee was set up in 2000. It became a permanent part of the Lok Sabha Rules in 2015 (verify).
• Mahua Moitra case (2023):
• The Lok Sabha Ethics Committee's First Report found two charges against her [5][6]:
  • "unethical conduct" and "contempt of the House", for sharing her Lok Sabha Members' Portal login with an unauthorised person, with possible effects on national security;
  • conduct unbecoming of an MP, for accepting gifts and other benefits from businessman Darshan Hiranandani to further his interests.
• On 8 December 2023 the Lok Sabha passed a motion expelling her from the 17th Lok Sabha [5][6].
• She was not allowed to speak, and opposition MPs walked out [6].
• Her objections [6]:
  • there was no proof of money changing hands;
  • she could not cross-examine her accusers;
  • she was punished under an ethics code that did not exist.
• Status of her challenge in the Supreme Court: verify.
• Exam point: this case raises the question of whether an Ethics Committee can recommend expulsion when no written code of conduct exists.

9. Privileges and the courts

Case (year)	Background	What the court held
M.S.M. Sharma v. Sri Krishna Sinha (Searchlight, 1959)	A newspaper published parts of a Bihar Assembly speech that had been expunged (removed from the record)	Privileges under Arts. 105(3) and 194(3) prevail over the press's freedom under Art. 19(1)(a)
In re Keshav Singh (Special Reference No. 1 of 1964; decided 1965)	The UP Assembly jailed Keshav Singh for contempt. The Allahabad High Court gave him bail. The Assembly then ordered the judges themselves to be arrested, and the President sent the question to the Supreme Court under Art. 143	Courts can examine a legislature's jailing of a citizen for contempt. The House is not the sole judge of its own privileges. Judges cannot be punished for hearing such cases
P.V. Narasimha Rao v. State (1998, 3:2)	JMM MPs took bribes to vote against the 1993 no-confidence motion	MPs who took bribes and voted were immune under Art. 105(2). An MP who took a bribe and did not vote was not immune
Raja Ram Pal v. Speaker (2007)	The 2005 cash-for-query expulsions	The Houses have the power to expel. Courts can still review an expulsion in a limited way, for gross illegality, irrationality or unconstitutionality. Art. 122 protects only procedural irregularity
Sita Soren v. Union of India (4 March 2024, 7 judges)	A JMM MLA was accused of taking a bribe to vote in the 2012 Rajya Sabha election	Overruled Narasimha Rao [2][7]. Details below

• What Sita Soren (2024) held [2][7]:
• A legislator cannot claim immunity under Art. 105 or 194 from prosecution for bribery linked to a vote or speech.
• The offence is complete when the bribe is accepted. It does not matter whether the vote is cast as agreed, or cast at all.
• A privilege must pass the necessity test: it must be necessary for the House to function. Taking bribes is not.
• The 1998 view was a "grave danger" to probity (honesty) in public life, so it was overruled.

10. Codification of privileges

• Codification means writing the privileges down in a law under Art. 105(3).
• For codification:
• certainty, because everyone knows what the privileges are;
• protection of press freedom (Art. 19(1)(a));

• protection of citizens and journalists from arbitrary punishment, where the House acts as both victim and judge.

• Against codification:

• loss of flexibility to deal with new forms of obstruction;

• once written into an ordinary law, privileges become open to Art. 13 review. Courts could then strike them down if they violate Fundamental Rights.

• Comparison: Australia codified its privileges in the Parliamentary Privileges Act 1987. The UK, which India originally copied, still relies largely on custom.

Prelims Hooks

• Art. 105(4) extends parliamentary privileges to the Attorney General and ministers, but not to the President.
• The reference to the UK House of Commons in Art. 105(3) and 194(3) was removed by the 44th Amendment (1978). The same amendment added Art. 361A (protection for publishing proceedings).
• Freedom from arrest covers civil cases only: during a session and 40 days before and after it (CPC s.135A). It gives no protection from criminal arrest or preventive detention.
• Art. 122 bars courts from questioning proceedings only for procedural irregularity. Illegality and unconstitutionality can still be reviewed (Raja Ram Pal, 2007).
• Committee of Privileges: Lok Sabha has 15 members; Rajya Sabha has 10, headed by the Deputy Chairman.
• Rajya Sabha privilege rules are Rules 187–203; Lok Sabha privilege rules are Rules 222–228 [3].
• Sita Soren (2024, 7 judges) overruled P.V. Narasimha Rao (1998). Bribery is complete when the bribe is accepted, whether or not the vote is cast [2].
• Keshav Singh (1964 Reference) reached the Supreme Court as a presidential reference under Art. 143. It settled a clash between the UP Assembly and the Allahabad High Court.
• Ethics Committees: Rajya Sabha 1997, Lok Sabha 2000. Mahua Moitra was expelled on 8 December 2023 [5].
• Trap: expulsion of members by the House happened in 1976 (Swamy, Rajya Sabha), 1978 (Indira Gandhi, Lok Sabha) and 2005 (11 MPs). The 1978 expulsion was rescinded in 1981.

Mains Points

• Privileges vs. Fundamental Rights.
• Searchlight (1959) made press freedom yield to privilege.
• Keshav Singh (1964) and Raja Ram Pal (2007) brought privileges under limited judicial review.
• Sita Soren (2024) added a necessity test.

• Together these show a shift from "the House alone decides" towards "privileges exist for the House's function, not for members' personal benefit".

• Codification debate (Art. 105(3)).

• More than 75 years without a law leaves privileges vague. This lets Houses punish critics and journalists while acting as judge in their own cause.
• A codified law, perhaps on the Australian 1987 model, would bring certainty and protect free speech.

• The cost is some flexibility, and the law would face Art. 13 review.

• Due process in ethics and privilege inquiries.

• The 2023 Moitra expulsion raised concerns about procedure: no cross-examination, no written code of conduct, and decisions taken along party lines [6].

• Reform options:

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

• Accountability vs. immunity.

• Sita Soren closes the bribery loophole and strengthens public trust.
• Parliament must still guard free speech in the House from misuse of criminal cases. The necessity test is the balance between the two.