Claiming they had misled Parliament on the Rafale fighter jet deal issue, a breach of privilege motion was moved against Prime Minister and Defence Minister.A claim of ‘breach of privilege’ was raised against chairman of the Parliamentary Standing Committee on finance, for “lowering the dignity and ethics of the Finance Committee” by tweeting about the committee’s deliberations.

Concept of privileges and types of privileges :

• The concept of privileges emerged from the British House of Commons when a nascent British Parliament started to protect its sovereignty from excesses of the monarch.
• Currently, there is no law that codifies all the privileges of the legislators in India. Privileges are based on five sources: i) Constitutional provisions ii) Various laws of parliament (iii) Rules of both the houses iv) Parliamentary conventions v) Judicial interpretations.
• The Constitution (under Art. 105 for Parliament, its members & committees /Art. 194 for State Legislature, its members & committees) confers certain privileges on legislative institutions and their members to: Protect freedom of speech and expression in the House and insulates them against litigation over matters that occur in these houses, Protect against any libel through speeches,printing or publishing, Ensure their functioning without undue influence, pressure or coercion, Ensure sovereignty of Parliament.
• Whenever any of these rights and immunities is disregarded, the offence is called a breach of privilege and is punishable under law of Parliament. However, there are no objective guidelines on what constitutes breach of privilege and what punishment it entails.
• Following procedure is followed in privilege cases: 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.The Speaker/ Rajya Sabha chairperson is the first level of scrutiny of a privilege motion. They can take a decision themselves or refer it to the privileges committee of parliament. Privilege committee in Parliament as well as in state legislatures decides upon such cases.
• An inquiry is conducted by the committee and based on findings a recommendation is made to the legislature.
• A debate can be initiated on the report in the House and based on the discussion, the Speaker can order the punishment as defined by the privileges committee.

Challenges with respect to privileges :

• Against 'Constitutionalism' or doctrine of limited powers. Absence of codified privileges gives unbridled power to house to decide when and how breach of privilege occurs. Judicial scrutiny is barred in cases of privileges, which is against the doctrine of judicial review.
• Discredits separation of powers, as speaker acts as complainant, advocate and the judge. Used as a substitute for legal proceedings.
• Penal action in cases of breach of privileges unwarranted, unless there is an attempt to obstruct the functioning of the house or its members.
• Must only be invoked by legislature when there is "real obstruction to its functioning". Breach of privilege invoked for genuine criticism of members of the house or due to political vendetta, reduces accountability of elected representatives. Violation of FR of expression and personal liberty.
• Invoked on grounds of defamation by individual members, while judicial remedy available under defamation and libel law.

Committee on Privileges :

• Standing committee constituted in each house of the Parliament/state legislature.
• Consists of 15 members in Lok Sabha (LS) and 10 members in Rajya Sabha (RS) to be nominated by the Speaker in LS and Chairman in RS.
• Its function is to investigate the cases of breach of privilege and recommend appropriate action to the Speaker/Chairperson.

Instances of breach of privileges :

• In 1978, Indira Gandhi faced a motion for breach of privilege on the basis of observations of excesses during emergency (Justice Shah Committee report). Subsequently, she was expelled from the house.
• Expulsion of Subramanyam Swami from Rajya Sabha in 1976 on charges of bringing disrepute to the Parliament.
• Tamil Nadu assembly punished the journalists of The Hindu for criticizing the CM in 2003.
• Karnataka assembly passed a resolution imposing imprisonment and fines on scribes in 2017.

Various recommendations regarding codification of privileges :

• Recommendations of the National Commission to Review the Working of the Constitution (NCRWC) : The privileges of legislators should be defined and delimited for the free and independent functioning of Parliament and state legislatures.Article 105 and 194 may be amended to clarify that the immunity enjoyed by members under parliamentary privileges does not cover corrupt acts committed by them in connection with their duties in the House or otherwise. No court would take cognizance of any offence arising out of a member’s action in the House without prior sanction of the Speaker / Chairman.
• 2nd ARC also endorsed the recommendations of NCRWC.
• The 16th All India Whips Conference recommended to consider codification of privileges to remove the uncertainty surrounding them and address the anxieties of the people and the press.

Way Forward :

• Constituent Assembly envisaged the system of uncodified privileges based on British House of Commons, as only temporary. Indian & British Parliament have different political and legal status (popular sovereignty vs parliamentary sovereignty). Therefore, there is a need for proper codification of privileges. E.g. Australia passed Parliamentary Privileges Act in 1987, clearly defining privileges, the conditions of their breach and consequent penalties.
• The decisions of the speaker may be influenced by his/her political affiliations. Therefore, the trial must be conducted by a competent, independent and impartial tribunal.
• Higher judiciary must set limits on punitive powers.
• The 'sovereign people of India' have restricted right to free speech while 'their representatives' have absolute freedom of speech in the houses. Courts must revisit earlier judgments to find right balance between Fundamental Rights of the citizens and privileges of legislature.