Explained: What constitutes a breach of legislature’s privilege? (IE)

Context: BJP MP Chaudhary issues breach of privilege notice against Trinamool MP Mahua Moitra

  • Former Union minister and Bharatiya Janata Party (BJP) MP P.P. Chaudhary issued a breach of privilege notice against Trinamool Congress (TMC) MP Mahua Moitra in the Lok Sabha for the TMC MP’s remarks against a former Chief Justice of India.
  • While speaking on the Motion of Thanks to the President’s address, she has cast some aspersions with respect to the conduct of a judge. So the question is whether the conduct of a judge can be discussed on the floor of the House or not.
  • Article 121 of the Constitution does not allow allegations to be levelled against a sitting or a former judge.
  • Supporting him, BJP MP Nishikant Dubey demanded that Ms. Moitra’s membership be cancelled.


Parliamentary privileges and privileges of State Legislature

  • Parliamentary privileges (Article 105 of the Constitution)/privileges of State Legislature (Article 194 of the Constitution) are special rights, immunities and exemptions enjoyed by the two Houses of Parliament/State Legislatures, their committees and their members.
  • They are necessary:
  1. To secure the independence and effectiveness of their actions;
  2. To maintain their authority, dignity and honour; and
  3. To protect their members from any obstruction in the discharge of their parliamentary responsibilities.
  • The Constitution has also extended the parliamentary privileges/privileges of State Legislature to those persons who are entitled to speak and take part in the proceedings of a House of Parliament/State Legislature or any of their committees.
  • These include the Attorney General of India/Advocate General of the State and Union/State Ministers.
  • It must be noted that the parliamentary privileges do not extend to the President/Governor who are also integral part of the Parliament/State Legislature.


  • Parliamentary privileges/privileges of State Legislature can be classified into two broad categories:
  1. Those that are enjoyed by each House of Parliament//State Legislature collectively; and
  2. Those that are enjoyed by the members individually.

Collective Privileges

  • The privileges belonging to each House of the Parliament/State Legislature collectively are:
  • It has the right to publish its reports, debates and proceedings and also the right to prohibit others from publishing the same.
  • The 44th Amendment Act of 1978 restored the freedom of the press to publish true reports of parliamentary proceedings/proceedings of the State Legislature without prior permission of the House.
  • But this is not applicable in the case of a secret sitting of the House.
  • It can exclude strangers from its own procedure and hold secret sittings to discuss some important matters.
  • It can make rules to regulate its own procedure and the conduct its business and to adjudicate upon matters.
  • It can punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment (also suspension or expulsion, in case of members).
  • It has the right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member.
  • It can institute inquiries and order the attendance of witnesses and send for relevant papers and records.
  • The courts are prohibited to inquire into the proceedings of a House or its committees.
  • No person (either a member or outsider) can be arrested, and no legal process (civil or criminal) can be served within the precincts of the House without the permission of the presiding officer.

Individual Privileges

  • The privileges belonging to the member individually are:
  • They cannot be arrested during the session of Parliament/State Legislature and 40 days before the beginning and 40 days after the end of a session.
  • This privilege is available only in civil cases and not in criminal cases or preventive detention cases.
  • They have freedom of speech in Parliament/State Legislature.
  • No member is liable to any proceedings in any court for anything said or any vote given by him in Parliament/State Legislature or its committees.
  • This freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament/State Legislature.
  • They are exempted from jury service.
  • They can refuse to give evidence and appear as a witness in a case pending in a court when Parliament/State Legislature is in session.

Breach of Privilege and Contempt of the House

  • Normally, a breach of privilege may amount to contempt of the House. Likewise, contempt of the House may include may include a breach of privilege also.
  • Contempt of the House, however, has wider implications. There may be a contempt of the House without specifically committing a breach of privilege. Similarly, actions which are not breaches of any specific privilege but are offences against the dignity and authority of the House amounts to contempt of the House.

Sources of Privileges

  • Originally, the Constitution (Article 105) expressedly mentioned two privileges, that is, freedom of speech in Parliament/State Legislature and right of publication of its proceedings.
  • With regard to other privileges, it provided that they were to be the same as those of the British House of Commons, its committees and its members on the date of its commencement (26th January 1950), until defined by Parliament.
  • It should be noted that the Parliament, till now, has not made any special law to exhaustively codify all the privileges.
  • They are based on five sources:
  1. Constitutional provisions;
  2. Various laws made by Parliament;
  3. Rules of both the Houses;
  4. Parliamentary conventions; and
  5. Judicial interpretations.

Who can move a privilege motion? How?

  • A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege.

What are the rules governing privilege?

  • A member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
  • The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House.
  • Notices have to be given before 10 am to the Speaker or the Chairperson.

What is the role of the Speaker/Rajya Sabha Chair?

  • The Speaker/RS chairperson is the first level of scrutiny of a privilege motion.
  • The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament.
  • If the Speaker/Chair gives consent, the member concerned is given an opportunity to make a short statement.

What percentage of privilege notices are rejected?

  • A large number of notices are rejected, with penal action recommended in only a few.

What is the privileges committee?

  • In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths.
  • In the Rajya Sabha, the deputy chairperson heads the committee of privileges, that consists of 10 members.

What is the punishment in case of breach of privilege or contempt of the House? 

  • The house can ensure attendance of the offending person.
  • The person can be given a warning and let go or be sent to prison as the case may be. 

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