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PARLIAMENTARY PRIVILEGES

C O N T E N T S

PAGE(S)

1. Definition and Scope of Privileges 1-3

2. Main Privileges of Parliament 4-5

3. Breach of Privilege 6

4. Contempt of Parliament 7-8

5. Power of Parliament to punish for Contempt 9

6. Forms of punishment for breach of Privilege or Contempt 10-12

7. Freedom of Speech 13-15

8. Parliamentary Privileges and the Press 16-19

9. Privilege of Freedom from arrest or molestation 20-22

10. Use of Handcuffs 23

11. Points of Propriety 24-25

12. Questions of Privilege and working of

Committee of Privileges 26-28

13. Procedure regarding production of documents

in a court of law 29

14. Procedure when a breach of Privilege is

committed by a member of other House 30-31

DEFINITION AND SCOPE OF PRIVILEGE

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of Parliament and by members of each House individually, without which they could not discharge their functions, efficiently and effectively, and which exceed those possessed by other bodies or individuals. When any of these rights and immunities, both of the members, individually, and of the assembly in its collective capacity which are known by the general name of privileges, are disregarded or attacked by any individual or authority, the offence is called a breach of privilege, and is punishable under the law of Parliament. Articles 105/194 of the Constitution deal with the powers, privileges and immunities of Members oil Parliament/State legislatures and their House, Members and Committees. Each House also claims the right to punish actions which, while not breaches of any specific privilege, are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself. its officers or its members. Such actions, though called "breaches of privilege" are more properly distinguished as "contempts".

2. Article 105 of the Constitution of India which provides for the powers, privileges and immunities of the Houses of Parliament and of the Members and the Committee thereof reads as follows:-

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof, and no person shall he so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper. votes or proceedings.

(3) In other respects, the powers, privileges and immunities of

each House of Parliament and of the members and the Committees of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of Parliament or any committee thereof as they apply in relation to Members of Parliament.

3. The corresponding provisions relating to the powers, privileges and immunities of the Houses of State Legislatures and of the members and committees thereof are contained in Article 194 of the Constitution which are in identical terms to those in Article 105 relating to Parliament.

4. Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978 came into force with effect from the 20th June, 1979. Prior to that, clause (3) of Article 105 provided that "in other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution i.e. on the 26th January, 1950".

No law has so far been enacted by Parliament (and State Legislatures) in pursuance of clause (3) of Articles 105/194 of the Constitution to define the powers, privileges and immunities of each House and of the Members and the committees thereof. In the absence of any such law, therefore, the powers, privileges and immunities of the Houses of Parliament and State Legislatures and of the Members and the committees thereof continue in actual practice to be governed by the precedents of the British House of Commons as they existed on the date our Constitution came into force.

5. It may be observed that Article 105(3) stipulates that Parliament may from time to time define its privileges by law and it has been urged particularly by the Press that there should be codification of the law of privilege so as to make the position clear and free from ambiguity. The question of undertaking legislation on the subject has also engaged the attention of the Presiding Officers of Parliament and State Legislatures in India since 1921. The dominant view, however, has all along been that any codification is more likely to harm the prestige and sovereignty of Parliament/State Legislatures without any benefit being conferred on the Press and that in the present circumstances, codification of Parliamentary privileges is neither necessary nor desirable.

MAIN PRIVILEGES OF PARLIAMENT

6. Some of the more important privileges of each House of Parliament and of its members and Committees are as follows:-

(i) Freedom of speech in Parliament [of Article 105(1) of the Constitution].

(ii) Immunity to a member from any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any Committees thereof [of Article 105(2) of the Constitution].

(iii) Immunity to a person from proceedings in any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or Proceedings [of Article 105(2) of the Constitution].

(iv) Prohibition on the courts to inquire into proceedings of Parliament (of Article 122 of the Constitution).

(v) Freedom from arrest of Members in civil ceases during the continuance of the session of the House and forty days before its commencement and forty days after its conclusion (of section 135 of the Code of Civil Procedure).

(vi) Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment arid release of Member (of Rules 222A and 222B of the Rules of Procedure and Conduct of Business in Rajya Sabha).

(vii) Prohibition of arrest and service of legal process within the precincts of the House without obtaining the permission of the Chairman/Speaker.

(viii) Prohibition of disclosure of the proceeding or decision's of a secret sitting of the House.

(ix) Members or Officers of the House cannot give evidence or produce documents in courts of law, relating to the proceedings of the House without the permission of the House (of First Report of Committee of Privileges of Rajya Sabha presented to the House on the 1st May, 1958).

(x) Members or Officers of the House cannot attend as a witness before the other House or a Committee thereof or before a House of State legislature or a Committee thereof without the permission of the House and they cannot be compelled to do so without their consent (of Sixth Report of Committee of Privileges of Second Lok Sabha, adopted by Lok Sabha on the 17th December, 1958 and Thirty-third Report of the Committee of Privileges of Rajya Sabha, adopted by the House on 30th March, 1993).

(xi) All Parliamentary Committees are empowered to send for persons, papers and records relevant for the purposes of the inquiry by a Committee. A witness may be summoned by a Parliamentary Committee who may be required to produce such documents as are required for the use of a Committee.

(xii) The evidence tendered before a Parliamentary Committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid on the Table of the House.

7. In addition to the above-mentioned privileges and immunities, each House also enjoys certain consequential powers necessary for the protection of its privileges and immunities. These powers are as follows:- (i) to commit persons, whether they are Member or not, for breach of privilege or contempt of the House;

(ii) to compel the attendance of witnesses and to send for papers and records;

(iii) to regulate its own procedure and the conduct of its business; (of Article 118 of the Constitution).

(iv) to prohibit the publication of its debates and proceedings;

(v) to exclude strangers from the House.

BREACH OF PRIVILEGE

8. When any individual or authority disregards or attacks any of the privileges, rights and immunities, either of the Members individually or of the House in its collective capacity, the offence is called a breach of privilege and is punishable by the House Besides, actions in the nature of offences against the authority or dignity of the House, such as disobedience to its legitimate orders or libels upon itself, its Members, Committees or Officers also constitute breach of privilege.

CONTEMPT OF PARLIAMENT

9. Contempt of the House may be defined generally as "any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency directly or indirectly, to produce such results." It may be stated that it is not possible to enumerate exhaustively every act which might be construed by the House as a contempt of the House, Some of the important types of contempt of Parliament are, however. mentioned below:-

(i) Speeches or writings reflecting on the House, its Committees or Members;

(ii) Reflections on the character and impartiality of the Chairman/Speaker in the discharge of his duty;

(iii) Publication of false or distorted report of the Proceedings of the House;

(iv) Publication oil expunged proceedings of the House;

(v) Publication of proceedings of secret Sessions of the House;

(vi) Pre-mature publication of proceedings, evidence or report of a Parliamentary Committee;

(vii) Reflections on the report of a Parliamentary Committee;

(viii) Molestation of Members on account of their conduct in the House or obstructing Members while in the performance of their duties as Members or while on their way to or coming after, attending the House or a Committee thereof; (ix) Offering bribes to Members to influence them in their Parliamentary conduct; (x) Intimidation of Members in connection with their Parliamentary conduct; (xi). Any misconduct or undignified behaviour on the part of a Member, such as, corruption in the execution of his office as Member, disorderly and undignified conduct contrary to the usage or inconsistent with accepted standards of Parliamentary conduct; (xii) Obstructing or molesting officers of the House in the discharge of their duties; (xiii) Giving false or misleading evidence or information deliberately to the House or a Committee thereof, by a Member or a witness.

(xiv) Obstructing or molesting any witness during his evidence before a Committee of the House.

POWER OF PARLIAMENT TO PUNISH FOR CONTEMPT

10. Each House of Parliament is the guardian of its own privileges. Courts of law In India have recognised that a House of Parliament (or of a State Legislature) is the sole authority to judge as to whether or not there has been a breach of privilege or contempt of the House in a particular case.1 The House may punish a person found guilty of breach of privilege of contempt of the House either by reprimand or admonition or by imprisonment for a specified period. In case of its own Members, two other punishments can be awarded by the House, namely, suspension from the service of the House or expulsion.

The penal Jurisdiction of the House is not confined to its own Members nor to offences committed in its immediate presence, but extends to all contempts of the House, whether committed by members or any persons who are not Members, irrespective of whether the offence is committed within the House or beyond its walls. The power to punish is the most potent weapon in the hands of a House of legislature which gives reality to privileges of Parliament, emphasises its sovereign character and vindicates its own authority and dignity. Therefore, it has aptly been described as the key-stone of Parliamentary privilege."

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1M.S.M. Sharma, Vs. Shri Krishna Sinha, AIR. 1959, S.C. 395; Homi D. Mistry Vs. Nafisul Hassan, I.L.R. 1957, Bombay 218.

FORMS OF PUNISHMENT FOR BREACH OF PRIVILEGE OR CONTEMPT

11. The House may impose the following punishment on a person found guilty of breach of privilege or contempt of the House:-

(i) Imprisonment:

The period for which the House can commit an offender to prison for contempt or breach of its privileges is limited to the duration of the Session of the House. As soon as the House is prorogued, the Prisoner is set at liberty. In a number of cases, where visitors shouted slogans and threw leaflets from the Visitors' Gallery on the floor of the House, (Rajya Sabha/Lok Sabha) the House committed the offenders to prison for committing a contempt of the House by creating disorder in the Public Galleries.

(ii) Admonition or Reprimand:

In case where the offence of breach of privilege or contempt is not so serious as to warrant the imprisonment of the offender by way of punishment, the person concerned may be summoned to the bar of the House, and admonished or reprimanded by the Chairman/Speaker by order of the House. Admonition is the mildest form oil punishment, whereas reprimand is a more serious mark of displeasure of the House. In Rajya Sabha there have so far been only two cases of reprimand. In the first case three persons viz. Dinesh Chandra Garg, Anil Kumar Garg and Vishnu Kumar Garg were reprimanded at the Bar of the House on 24,12.80 for prematurely publishing the Finance Bill (No. 2), 1980 before it was passed by Parliament. (Nineteenth and Twentieth Reports of the Committee of Privileges, Rajya Sabha).

In the other case Shri K.K. Tewary was reprimanded at the Bar of the House on 1.6.1990, in terms of the Resolution adopted by the House on 24.5.1990, for committing a contempt of the House by making certain remarks derogatory to the Office of the Chairman. Rajya Sabha, as published in newspapers.

12. The penal powers of the House for breach of privilege of contempt of the House, are, however, exercised only in extreme cases where a deliberate attempt is made to bring the institution of, Parliament into disrespect 'and undermine public confidence in and support of Parliament. It is considered desirable that the process of Parliamentary investigation should not be used in a way which would give importance to irresponsible or reckless statements or to persons of no consequence making such statements.

13. It may be mentioned that the Select Committee on Parliamentary Privilege of House of Commons (U.K.), 1967 made the following recommendation:

"The House should exercise its penal jurisdiction (a) in any event as sparingly as possible, and (b) only when it is satisfied that to do so is essential in order to provide reasonable protection for the House, its Members or its Officers from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions." Subsequently, The Committee of Privileges of the House of Commons in their Third Report (1976-77) reiterated this recommendation, and the House of Commons, U.K., adopted it on 6th February, 1978.

14. The above approach has normally been followed in matter of privilege by he two Houses of Parliament as well as by the House of Commons, U.K. Thus in a case in which a Hindi Weekly "Pratipakeha" published an article under the heading "Sansad Ya Choron Aur Dalalon Ka Adda" (Parliament or a den of thieves and touts), the Rajya Sabha on 5 September, 1974 adopted a motion to the effect that the House would consent its own dignity by taking no further action in, the matter despite the fact that the said publication. constituted a gross breach of privilege and contempt of the House.

It is also a tradition of the House that unqualified and unconditional regrets sincerely expressed by the persons guilty of breach of privilege and contempt of the House are accepted by the House and the House normally decides in such cases to best consult its owns dignity by taking, no further notices of the matter.

FREEDOM OF SPEECH

15. The most important privilege of Members of Parliament is freedom of speech in Parliament. This privilege is embodied in clauses (1) and (2) of Article 105 of the Constitution. This privilege is based (in Article 9 of the Bill of Rights, 1989 of the United Kingdom whereby it was declared:

"That the freedom of speech, and debate or proceedings in Parliament, Ought not to be impeached or questioned in any wart or place out of Parliament." Thus no action can be taken against a Member of Parliament in any Court or before any authority other than Parliament in respect of anything said or any Vote given by him in Parliament or any Committee thereof. It is also a breach of privilege to molest a Member or to take any action against him or to threaten action against him on account of anything said by him in Parliament Committee thereof it would be breach of privilege to institute any legal proceedings against a Member in respect of anything said by him in Parliament.

16. A Member cannot also be questioned In any court or by any agency outside Parliament for any disclosures he may make in parliament. The Committee of Privileges of Rajya Sabha in their 12th Report, adopted by Rajya Sabha on the 20th December, 1968, observed:

"..... it would be impeding a Member of Parliament in the discharge of his duties as such Member if he is to be questioned in any place outside Parliament for a disclosure that he may make in Parliament. The right of a Member of Parliament to function freely and without fear or favour is in India, as in the U.K., a constitutional guarantee. This guarantee is subject only to the rules, of the House ant ultimately to the disciplinary jurisdiction of the House itself...any investigation outside Parliament of anything that

Member says or does in the discharge of his duties as a Member of Parliament would amount to a serious interference with the Member's right to carry out his duties as such Member."

The Committee also recommended:- "If in a case a Member states something on the floor of the House which may be directly relevant to a criminal investigation and is in the opinion of the investigating authorities, of vital importance to them as positive evidence, the investigating authority may make a report to the Minister of Home Affairs accordingly. If the Minister is satisfied that the matter requires seeking the assistance of the Member concerned, he would request the Member through the Chairman to meet him. If the Member agrees to meet the Home Minister and also agrees to give the required information the Horne Minister will use it in a manner which will not conflict with any Parliamentary right of the Member. If, however, the Member refuses to respond to the Home Minister's request, the matter should be allowed to rest there." In pursuance of the above recommendations of the Committee of Privileges of Rajya Sabha, the Ministry of Home Affairs have issued necessary instructions2 to all State Governments and Union Territory Administrations.

17. Thus the speech and action in Parliament may be said to be unquestioned and free. However, this freedom from external influence or interference does not involve any unrestrained license of speech within the walls of the House. The right to freedom of speech in the House is circumscribed by the constitutional provisions and the Rules of Procedure and Conduct of Business in the Rajya Sabha. For example, Article 121 of the Constitution prohibits discussion in Parliament of the conduct of the judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presentation of an address to the President praying for the removal of

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2See Ministry of Home Affairs letters Nos. 32/3/66/68-Poll. I (AMDS), dated June 1969 and 2nd August, 1969. the judge. Rule 238A of the Rajya Sabha Rules also guards against making, of defamatory or incriminatory allegations against Members.

18. It has been held by the Supreme Court that the freedom of speech conferred on Members under Article 105 is subject only to those provisions of the Constitution which regulate the procedure of Parliament and to the rules and standing orders of the House, but is free from any restrictions which may be imposed by law made under Article 19(2) upon the freedom of speech of an ordinary citizen.3

19. Absolute privilege. has been given in respect of anything said or any vote given in Parliament or a Committee thereof so that Members may not be afraid to speak out their minds and freely express their views. In the same vein it is a breach of privilege and contempt of the House to obstruct or molest a member in the discharge of his duties qua Member. Thus, it would be a breach of privilege and contempt of the House to obstruct or molest a Member while in the execution of his duties as a Member i.e. while he is attending the House or any of its Committees or when he coming to, or going from, the House or any of its Committees. privilege, however, is not available in a case when the Member is not performing any Parliamentary duty.4

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3M.S.M. Sharma Vs. Sri Krishna Sinha, AIR 1959, S.C. 395.

4Para 7, Sixteenth Report of the Committee of Privileges of Rajya Sabha.

PARLIAMENTARY PRIVILEGES AND THE PRESS

20. The Press is often called an extension of Parliament. It conveys to the people the substance of Parliamentary legislation and discussion and keeps the people informed of what is happening in Parliament.

Though what appears in the Press may influence the Members and provide them with necessary background, the material itself does not form an authentic record of facts and exclusive reliance cannot be placed by a Member of Parliament oh the matter as reported, Thus, it has been ruled by successive Presiding Officers that questions, motions and other notices which are merely based on Press reports may not be admitted. The Member may be required to produce some other primary evidence on which his notice is based.

Freedom of the Press has not been expressly provided for in the Constitution, but is implicit in the fundamental right of the "freedom of speech and expression" guaranteed to the citizens under Article 19(1)(a) of the Constitution. It has been settled by judicial decisions that freedom of speech and expression includes freedom of the Press.

21. It is a breach of privilege and contempt of the House to publish expunged proceedings of the House. This question came up for consideration before the Supreme Court in the Searchlight case wherein the Court ruled that a report of the whole speech including be expunged portion though factually correct, may law be regarded as perverted and unfaithful and the publication of such a report may, prima facie, he regarded as constituting a breach of privilege of the House.5

22. Absolute immunity from proceedings in any court of law has been conferred under the Constitution on all personnels connected with the publication of proceedings of either House of Parliament, if such publication is made by or under the authority of the House.

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5M.S.M. Sharma Vs. Sri Krishna Sinha, A.I.R. 1959, S.C. 395.

[of Article 105(2)]. This immunity does not, however, extend to the publication of reports of Parliamentary proceedings in newspapers, whether published by a Member of the House or by any other person, unless such publication is expressly authorised by either House. However, constitutional protection has been given to the publication in newspapers or broadcasts by wireless telegraphy of substantially true reports of any proceedings of either House of Parliament, provided the reports are for the public good and are not actuated by malice. The Article 361A of the Constitution provides as follows:-

"361A.(1) No persons shall be liable to any proceedings civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made with malice:

Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament of the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.

(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.

Explanation-In this Article 'newspaper' includes a news agency report Containing material for publication in a newspaper."

23. The above protection has been accorded within the overall limitation that the House has the power to control and, if necessary, to prohibit the publication of its debates or proceedings and to punish for the violation of its orders. Normally, no restrictions are imposed on reporting the proceedings of the House. But when debates or proceedings of the House or its committees are reported mala fide or there is wilful misrepresentation or suppression of speeches of particular members, it is a breach of privilege and contempt of the House and the offender is liable to punishment. Further, the press is forbidden to publish any part of the proceedings or evidence given before, or any document presented to parliamentary committee before such proceedings or evidence or document has been reported to the House, The Committee of Privileges in its 29th Report inter-alia considered a question of breach of privilege arising out of the premature publication of the proceedings of the Committee before they were reported to the House by some newspapers. The Committee observed that the proceedings of a Parliamentary Committee are confidential and should not be disclosed or given any publicity unless the same is presented to the House or is other-wise treated as not confidential and therefore constitutes a breach of privilege and contempt of the House. Taking a note of the apology tendered by the concerned newspapers the Committee recommended no further action but warned all concerned that any premature publication or disclosure of the proceedings of the Committee will be dealt with seriously it such occasions arise in future It is also incumbent on the press not to disclose the proceedings or decisions of a secret sitting of the House, until the ban on secrecy is lifted by the House. Any such publication or disclosure is treated as a gross breach of privilege of the House.

However, it is Considered inconsistent with the dignity of the House to take any serious notice or action in the case of publication of every defamatory statement which may constitute a breach of privilege or contempt of the House. Even use of such scurrilous expressions as 'dacoits', 'smugglers' 'bootleggers', 'a bunch of thieves', 'Chamchas' and 'dogsbodies' in relation to Members of Parliament had been treated as 'not worth serious notice'. As observed by the Chairman, Rajya Sabha in a case in 1981, the newspapers are the eyes and ears of the public and if every citizen has a night to criticise the action of others, so also the newspapers Whose profession is to turn the light of publicity on the irregularities of public actions. It is only when a point is reached and writing ceases to be journalistic vapouring and becomes an improper obstruction to the functioning of Parliament and its Members by patent falsehood or otherwise, that action to the extent of punishment is called for. In deciding such cases of libel, the extent and circumstances of the publication of the libillous statement as also the standing of the persons making such statement are taken into consideration.

PRIVILEGE OF FREEDOM FROM ARREST OR MOLESTATION

24. The privilege of freedom from arrest is confined only to civil cases for the duration of the session and for a period of forty days before and forty days after the Session. The object of this privilege is to ensure the safe arrival and regular attendance of Members in Parliament The arrest of a member of Parliament In civil proceedings during the period when he is exempted from such arrest is a breach of privilege and the member concerned is entitled to release. This privilege of freedom from arrest does not, however, extend to criminal offence or cases of detention under The preventive detention.

25. Although members do rot have any privilege or immunity from arrest on, a criminal charge or under any law for preventive detention the House has a right to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member. This position is stated in Rules 222A and 222B of the Rules of Procedure and Conduct of Business in Rajya Sabha.

26. The failure on the part of a judge or a magistrate or other authority to inform the House of the arrest/detention or imprisonment of a member would constitute a breach of privilege of the House.

27. Another privilege which a member under custody enjoys is his right to correspond without any let or hindrance with the Chairman/Speaker, Secretary-General or Chairman of a Parliamentary Committee. It is a breach of privilege to withhold any communication addressed by a member in custody to the Chairman/Speaker, Secretary-General or the Chairman of a Parliamentary Committee.

28. No arrest, whether of a member or of a stranger can be made within the precincts of the House without containing the prior permission of the Chairman/Speaker and that too in accordance with procedure laid down by the Home Ministry in this regard. Similarly no legal process, civil or criminal, can be served within the, precincts of the House without obtaining the prior permission of the Chairman/Speaker whether the House is in Session or not. As a corollary to this rule, the court of law should not seek to serve a legal process, civil or criminal, on members of Parliament through the Chairman/Speaker or the Rajya Sabha/Lok Sabha Secretariat. The appropriate procedure is for the summons to be served direct on members concerned outside the precincts of Parliament, that is, at their residence or at some other place. A court of law should not also ask the Chairman/Speaker or the Rajya Sabha/Lok Sabha Secretariat to inform a member about issue of a legal process against him or seek to utilise in any manner the agency of the Chairman/Speaker or of the Secretariats of the Houses in the Service or execution of a legal process, civil or criminal, against a member.

The Committee of Privileges in its 21st Report considered a question of breach of privilege arising out of arrest of Shri Sadashiv Bagaitkar, M.P. in Nagpur on 26th December, 1980 and the treatment meted out to him while in detention. The Committee hoped that due care and caution will be taken by all concerned while sending communications with regard to Members of Parliament and that Police officials will appreciate the importance and sanctity of such communications and verify facts with abundant care before communicating the same to the Chairman and not treat the information in a casual and perfunctory manner. As regards the treatment meted out to Shri Bagaitkar, the Committee emphasised that Members of Parliament are entitled to utmost consideration at the hands of public servants. The Police or any other authority should not do anything or act in a manner which will hamper Members of Parliament in their functioning as public men. The authorities concerned should act with great restraint and circumspection and show all courtesies which are legitimately due to the representatives of the people.

The Committee of Privileges, in its 24th Report, considered the matter regarding the alleged failure of concerned authorities in Tamil Nadu to send intimation to Chairman, Rajya Sabha about the arrest and detention of Shri Era Sezhiyan, M.P. by the Police and Madras.

The State Government denied that Shri Sezhiyan was either arrested or detained by the Police. The Committee was of the opinion that irrespective of whether Shri Sezhiyan was arrested, detained, removed or restrained, a prompt intimation ought to have been sent to the Chairman, Rajya Sabha.

In its 30th Report, the Committee of Privileges while examining the complaints of members regarding their ill-treatment either in jail or at the hands of police officials, expressed its anguish and concern over the manner in which the members of Parliament were treated by the police and felt that members being the representatives of the people in the Parliament-the highest institution in our democratic polity should be treated with utmost courtesy and circumspection by the law enforcing authorities since any disrespect or discourtesy shown to them impinges upon the dignity of the Parliament besides causing personal affront and discomfiture to members. The Committee recommended that Government should frame detailed guidelines for dealings between the (i) Administration and Legislators and (ii) police and Legislators, in consistent with the dignity of Members and hoped that appropriate guidelines if implemented in letter & spirit will help reduce such complaints in future.

USE OF HANDCUFFS

29. There is no privilege specifically exempting a member of Parliament, ho is under arrest on a criminal charge, from being handcuffed. The Committee of Privileges of Fifth Lok Sabha in their Nineteenth Report presented to the House on 31st August, 1976, have observed that the instructions regarding handcuffing of prisoners by the Union Ministry of Home Affairs from lime to time should be strictly and scrupulously followed by all the authorities concerned of that State Governments and Union Territory Administrations and there should ordinarily be no occasion to handcuff prisoners such as Members of Parliament, Members of State Legislatures, peaceful satyagrahis, persons occupying good positions in public life and professionals like jurists, jornalists, doctors, writers and educationists.

POINTS OF PROPRIETY

30. In addition to privileges of Parliament, its Members and Committees, there are certain parliamentary practices, usages and conventions which should be followed by the members, and others. The violation of such parliamentary practices, usages and conventions would not technically constitute a breach of privilege or contempt of the House but such violation would be termed as 'impropriety'.

Some typical instances under this category ate listed below which, however, are not exhaustive:

Giving a premature publicity to various matters connected with the business of the House is an act of impropriety but not a breach of privilege or contempt of the House.

If any statement is made on the floor of the House by a Member or Minister which another member believes to be untrue, incomplete or incorrect, it does not constitute a breach of privilege. If an incorrect statement is made, there are other remedies by which the issue can be, decided. A breach of privilege can arise only when the member or the Minister makes a false statement or an incorrect statement wilfully, deliberately and knowingly.

Leakage of budget proposals or official secrets does not form any basis for a breach of privilege.

Statements made by Ministers at party meetings are not privileged.

No privilege of Parliament is involved if statements on matters of public interest are not first made in the House and are made outside. Such actions are against conventions and propriety but do not constitute any basis on which breach of privilege can he founded.

It is not a breach of privilege if documents intended for members are circulated to the Press and non-members first, but such acts are deprecated.

Where the report of a Committee has been presented to the House, its publication by the Press before copies of the report have

been made available to Members, is undesirable, but it is not a breach of privilege of the House.

No breach of privilege is involved if a member's speech has not been covered in full or has been covered in a summary form in the Press or over the Radio or T.V. It is also not a breach of privilege if a particular speech is not covered as adequately as other speeches, or is not given prominence.

Non-implementation of an assurance given by a Minister on the floor of the House is neither a breach of privilege nor a contempt of the House, for the process of implementation of a policy matter is conditional on a number of factors contributing to such policy.

No question of privilege is involved if letters of members are intercepted by censors because censorship is provided under the law. Section 26 of the Post Office Act, 1898, authorises censorship on the occurrence of any public emergency or in the interest of public safety or tranquility.

QUESTIONS OF PRIVILEGE AND WORKING OF COMMITTEE OF PRIVILEGES

31. The procedure for dealing with questions of privilege is laid down in Rules 187 to 203 of the Rules of Procedure and Conduct of Business in the Rajya Sabha.

32. A question of privilege may be raised in the House only after obtaining the consent of the Chairman. This has been made obligatory so that the time of the House is not taken up by raising a matter which, on the face of it, is not admissible. A member who wishes to raise a question of privilege is, therefore, required to give advance notice in writing to the Secretary General.

33. the question whether A matter complained of, is actually a breach of privilege or contempt of the House is entirely for the House to decide, as the House alone is the master of its privileges. The Chairman, in giving his consent to the raising of a matter in the House as a question of privilege, considers only whether there is a prima facie case for further inquiry and whether it should be brought before the House. In giving his consent, the Chairman is guided by the following conditions prescribed for the admissibility of questions of privilege:

Not more than one question shall be raised at the same sitting;

the question shall be restricted to a specific matter of recent occurrence; and

the matter requires the intervention of the House.

A question of privilege should thus be raised by a member at the earliest opportunity and should require the interposition of the House.

34. The Chairman, before deciding whether the matter proposed to be raised as a question of privilege requires the intervention of the House and whether he should give his consent to the raising of the

matter in the House, may give an opportunity to the person sought to be incriminated to explain his case to the Chairman. When a member seeks to raise a question of privilege against another member, the Chairman before giving his consent to the raising of the matter in the House, always. gives an opportunity to the Member complained against to place before him or the Hosue such facts as may be germane to the matter. Likewise when a complaint is made against a Minister for making misleading statements in the House or on other grounds, the Chairman invariably seeks the comments of the Minister concerned before deciding whether a prima facie case exists or not.

If a news paper reports incorrectly the proceedings of the House or comments casting reflections on the House or its members, the Chairman, in the first instance, gives an opportunity to the editor of the newspaper to present his case before giving his consent to the raising of a question of privilege in the House. The Chairman may withhold his consent to raising a question of privilege after the editor of Press correspondent of the newspaper concerned has expressed regrets or published a correction.

35. After the Chairman has given his consent to the raising of a matter in the House. as a question of privilege the member who tabled the notice has, when called by the Chairman, to ask for leave of the House to raise the question of privilege. While asking for such leave, the member concerned is permitted to make only a short statement relevent to the question of privilege. If objection to leave being granted is taken, the Chairman requests those members who are in favour of leave being granted to rise in their places. If twenty five or more members rise accordingly, the House is deemed to have granted leave to raise the matter and the Chairman declares that leave is granted; otherwise the Chairman informs the member that he does not have the leave of the House to raise the matter.

36. A question of privilege is accorded priority over other items in the List of Business. Accordingly, leave to raise a question of privilege is asked for after the questions and before other items in the order paper are taken up.

37. After leave is granted by the House for raising a question of privilege, the matter may either be considered and decided, by the House itself, or it may be referred by the House, on a motion made by any member, to the Committee of Privileges. and the House defers its judgement until the report of the Committee has been presented. However, in cases where the House finds that the matter is too trivial or that the offender has already tendered an adequate apology, the House itself disposes of the matter by deciding to proceed no further in the matter.

The Chairman is empowered to refer, suo motu, any question of privilege or contempt to the Committee of Privileges for examination, investigation and report. In doing so, the Chairman need not brine the matter before the House for consideration and decision as to whether the matter be refer-red to the Committee.

The Committee of Privileges examines every question of privilege referred to it and determines with reference to the facts of each case whether a breach of privilege is involved and, if so, the nature of the breach, the circumstances leading to It and make such recommendations as it may deem fit, The Committee of Privileges has the power to send for persons, papers and records and can take evidence of the persons involved in the matter and call for any documents concerning the question of privilege under consideration the Committee in cases where the facts are in dispute, the Committee of Privileges takes evidence of witness.

38. After the report of the Committee has been presented to the House, the Chairman or any member of the Committee may move that the report be taken into consideration. After the report is taken into consideration, the Chairman or any member of the Committee or any other member may move that the House agrees or disagrees or agrees with amendments, with the recommendations contained in the report. The motion that the report of the Committee of Privileges be taken into consideration is given the same priority as is given to a question of Privilege under Rule 190 of the Rules of Procedure and Conduct of Business in Rajya Sabha. Further action is taken in accordance with the decisions of the House on the report of the committee.

PROCEDURE REGARDING PRODUCTION OF DOCUMENTS IN A COURT OF LAW

39. An election petition challenging the election of Shri Biren Roy, a Member of Lok Sabha, for his connection with a firm which had contracted with the Government for installation of automatic vote recording device in the Rajya Sabha and the Lok Sabha Chambers was referred for trial to an election tribunal. The Tribunal requested that the files regarding automatic vote recording system be produced before it and also sought to examine the Secretaries of respective Houses. The Committee was asked to examine the following question:-

"What procedure should be followed when a request is received from a court of law for the production of documents." connected with the proceedings of tire House of any Committee of the House or in the custody of the Officers of the House or for giving of oral evidence by any officer of the House in respect of any such proceedings of documents." In its first report, the Committee of Privileges recommended that no member or officer of the House should give evidence in respect of any proceedings of the House or any Committee thereof or any document relating to or connected with any such proceedings or in the custody of officers of the House or produce any such document in a court of law Without the leave of the House being first obtained.

When the House was not in session, the Chairman might in emergent cases in order to prevent delays in the administration of Justice, permit a member or officer of the House to give evidence before a court of law in respect of any of the above matters or allow the production of the relevant documents and he would inform the House accordingly of the fact when it assembles.

PROCEDURE WHEN A BREACH OF PRIVILEGE IS COMMITTED BY A MEMBER OF THE OTHER HOUSE

40. In 1954 the Committees of Privileges of Lok Sabha and Rajya Sabha examined the procedure which should be followed in cases Where a breach of privilege or contempt of the House was alleged to have been committed by a member of the other House. The Committees after considering all aspects of the matter at their joint sittings. outlined the following procedure in such cases:-

(i) When a question of breach of privilege is raised in any House in which a member. officer or servant of the other House is involved, the Presiding Officer shall refer the case to the Presiding Officer of the other House, unless on hearing the member who raises the question or persuing any document. where the complaint is based on a document. he is satisfied that no breach of privilege has been committed or the matter is too trivial to he taken notice of, in which case he may disallow the motion for breach of privilege.

(ii) Upon the case being so referred, the Presiding Officer of the other House shall deal with the matter in the same way as if it were a case of breach of privilege of that House or of a member thereof.

(iii) The Presiding Officer shall thereafter Communicate to the Presiding Officer of the House where the question of privilege was originally raised a report about the enquiry, if any. and the action taken on the reference.

The Committee further observed that if the offending member, officer or servant tenders an apology to the Presiding Officer of the House in which the question of privilege is raised or the Presiding Officer of the other House to which the reference is made, no further action in the matter may be taken after such apology is tendered.

41. On two occasions the Committee of privileges of Rajya Sabha had considered cases of breach of privilege, the notices of which were

given by Members of Lok Sabha to Speaker, who in turn transmitted the same to Chairman, Rajya Sabha as the Ministers against whom the notices were directed, were members of the Rajya Sabha. The facts of these cases in brief are as under:-

(I) In 1979, Shri Jyotirmoy Bosu, M.P. (Lok Sabha) gave a notice of a question of privilege to Speaker, Lok Sabha regarding an alleged misleading statement made in House by Shri Pranab Kumar Mukherjee, M.P. (Rajya Sabha) when he was functioning as Minister of State of the Department of Revenue and Baking on the subject of voluntary disclosure of income and wealth. The matter came up in the Lok Sabha on 23rd April and 16th May, 1979. The Speaker, in terms of the procedure referred to above in paragraph 40, forwarded the matter to Chairman. Rajya Sabha on May 18, 1979 for necessary action. The Chairman after obtaining the comments of the Minister referred the matter to Committee of Privileges for examination, investigation and report under rule 203 of the Rules of Procedure and Conduct of Business in the Rajya Sabha. The Committee gave its, finding in the 17th Report presented to the House on March, 17, 1980.

(II) On September 11, 1992 Speaker, Lok Sabha referred a complaint given notice of by Shri George Fernandes, M.P. (Lok Sabha) alleging breach of privilege against Shri Rameshwar Thakur, Minister of State in the Ministry of Finance, who happened to be a member of Rajya Sabha and an officer of the Ministry of Finance, by seeking to influence. mislead some members of the Joint Parliamentary Committee probing into the Securities scam with a view to obstructing the work of the Committee. After obtaining the comments of Shri Rameshwar Thakur, the Chairman referred the matter to Committee of Privileges for examination, investigation and report under rule 203 of the Rules of Procedure and Conduct of Business in the Rajya Sabha. The Committee's findings are contained in its 32nd Report which was presented to the House on March 19, 1993.