Two days back (8 September 2020), a motion for breach of privilege was moved in the Maharashtra legislative assembly against Arnab Goswami, the Editor-in-Chief of the Republic TV.
Another motion for breach of privilege was moved in the Maharashtra legislative council against film actress Kangana Ranaut.
What is a breach of legislature’s privilege?
So, what exactly is a breach of legislature’s privilege?
It may be pointed out that Article 105 of the Constitution of India defines powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.
Likewise, Article 194 of the Constitution defines powers, privileges, etc., of the Houses of State Legislatures and of the members and committees thereof.
At present, the issue relates to the privileges of a state legislature, i.e., that of Maharashtra legislature, so let us discuss the issue by taking example of Article 194, though it is similar to Article 105.
Article 194 basically lays down the following provisions:
(1) Firstly, there is freedom of speech in the Legislature of every State. This is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature. This means that every legislator (i.e., MLA or MLC) has freedom of speech in the legislature of the state.
(2) Secondly, no member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof. Thus, a legislator has immunity in respect of what he says in the legislature.
(3) Thirdly, and this is important, there are certain other powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature. But, these are NOT codified, i.e., these are not properly defined by a law so far. What Article 194 lays down is that such other powers, privileges and immunities shall be such as may be defined by the Legislature by law. And, until they are so defined, they shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (44th Amendment) Act, 1978.
Now, any person violating any such privileges, is considered to be in breach of legislature’s privileges.
So, the grey area is in respect of the “other powers, privileges and immunities” that an MLA or MLC or the legislature itself or a committee thereof may have. These are NOT defined and not codified, and thus continue to be vague. The Parliament as well as the State Legislatures have chosen not to define them. Perhaps, vagueness is of more help, because it may cover many issues which are not supposed to be covered otherwise.
So, such other privileges of the legislature are quite wide and open-ended and there is always scope for their misuse, though, fortunately, there have not been many cases of people actually being punished for breach of such privileges.
In the case of Amarinder Singh v. Punjab Vidhan Sabha, (2010) 6 SCC 113, a Constitution bench of the Supreme Court observed that legislative privileges are exercised to safeguard the integrity of legislative functions against obstructions which could be caused by members of the House as well as non-members.
In the above judgment, the Supreme Court quoted Sir Erskine May having answered the question “What constitutes privilege?” in the following manner [see Erskine May, Parliamentary Practice, 16th Edn. (London: Butterworths, 1957) in “Chapter III: General View of the Privilege of Parliament” at p. 42]:
“Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land is, to a certain extent an exemption from the ordinary law.”
In the case of In re Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745, it was observed by the Supreme Court that the powers, privileges and immunities which are contemplated by clause (3) [of Article 194], are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively.
In the case of State of Karnataka v. Union of India, (1977) 4 SCC 608, a 7-Judge Bench of the Supreme Court emphasised that the powers contained in Article 194(3) are those which are “necessary for the conduct of the business of the House”, and observed as under:
“It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the ‘powers’ meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. … We need not travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly read such a conclusion.”
In the case of Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184, quoting from a report, it was observed:
“… Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their Members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.”
Thus, in essence, without going into further details, we can say that legislature’s privileges consist of the rights and immunities which the legislature and Members thereof possess to enable them to carry out their legislative functions effectively.
A person violating these privileges is said to be in breach of the legislature’s privileges. He may himself be a member of the legislature or a non-member, as in the case of Arnab Goswami and Kangana Ranaut.
However, unfortunately, many a time, efforts are made to widen the scope of the legislature’s privileges and notices are issued to people for breach of such privileges on flimsy or unsustainable grounds. It is generally done to satisfy the egos of those in power, or to safeguard their personal interests, in abuse or misuse of these vague provisions.
What is the procedure followed for breach of legislature’ privileges?
On a motion being moved in a House of legislature alleging breach of legislature’s privileges, the Speaker (or the Chairman) of the House may refer the matter to a Privileges Committee consisting of certain number of members of the House, if he finds that there is a prima facie case in the motion moved.
The Privileges Committee has quasi-judicial powers and it conducts an inquiry in the matter, seeks explanation from those concerned, and makes a recommendation based on the findings to the state legislature for its consideration.
Thereafter, it is for the state legislature concerned to take action on such recommendation and punish or warn the person or close the matter.
What punishment is possible for breach of legislature’s privileges?
The punishment that can be given to the person found guilty of the breach of privileges, can generally be communicating the displeasure of the state legislature, summoning the person before the House and giving a warning, or even sending him to jail.
