Some members of Parliament have filed privilege notices against several persons associated with the protests related to the Lokpal bill. The main accusation is that they have made derogatory remarks against MPs.

The issue of privilege was wrested over a period of time by the Lords and the Commons in revolutionary England. The objective was that the members should have the freedom to discharge their functions, including the right to speak and vote within Parliament, without the fear of being victimised by the monarch.

Although there is no need for protection against a despotic monarch in India, the need to ensure that MPs are free to express their opinions in speech and vote was recognised by the framers of our Constitution. Article 105 of the Constitution provides (a) freedom of speech of MPs subject to provisions of the Constitution and the rules and procedures of Parliament; (b) legal immunity for anything said or vote given by an MP in Parliament or its committee; and (c) any other powers, privileges, and immunities that Parliament prescribes by law. In the absence of any law, such privileges would be the same as those enjoyed by the House of Commons at the commencement of the Constitution; this provision was amended in 1978 to state that the privileges would be the same as enjoyed by the Houses of Indian Parliament as on the date of effect of that amendment.

It is evident that the Constitution provided for a law to codify privileges, and adopted the practice in the House of Commons as a temporary measure. Indeed, in the Constituent Assembly, Dr Rajendra Prasad said, “Parliament will define the powers and privileges, but until Parliament has undertaken the legislation and passes it, the privileges and powers of the House of Commons will apply. So, it is only a temporary affair. Of course, Parliament may never legislate on that point and it is therefore for the members to be vigilant.” Parliament has not enacted any law till date.

The main argument for a legislation is that there would be clarity on the exact boundaries that may not be crossed, and on which penal action may be taken. On the other hand, a law could lead to intervention by courts. This issue has been examined several times by Parliament. For example, the Committee on Privileges of Lok Sabha examined the issue in 2008. The committee felt that allegations of misuse of its powers were due to ignorance of the procedures, and noted that it had recommended punishment in only five cases since the first Lok Sabha was constituted. It concluded that there was no need for codification.

There are several types of cases in which Parliament may invoke its penal powers. It may take action against someone who obstructs the work of MPs. For example, in February 2008, some Rajya Sabha MPs complained they were deprived of the benefit of getting answers to their questions as some MPs (not named) did not allow the House to run. However, the Committee of Privileges concluded that bringing such matters under the purview of parliamentary privileges was not an optimal solution.

Parliament may penalise MPs for misconduct. It took action against several MPs, including expelling them from the House, for issues such as the cash-for-questions.

Parliament may also take action against any person for lowering the dignity of the House. In 2008, the editor of an Urdu newspaper reported that the deputy Chairman of Rajya Sabha had behaved in a cowardly manner while chairing the House. The privileges committee held the editor guilty but decided not to pursue the matter as his intention was to get publicity.

There are moves to codify the privileges in some other parliamentary democracies. Australia enacted its Parliamentary Privileges Act in 1987. It prescribes a maximum penalty of one year imprisonment and fine of A$5,000. The Australian legislation prohibits the expulsion of any member from membership of the House. Also, it abolishes contempt by defamation: Section 6 states that “words or acts shall not be taken as an offence against a House by reason only that those words or acts are defamatory or critical of Parliament, a House, a committee or a member”. It excludes the words spoken or acts done in the presence of a House of committee from this protection. In the UK, a joint committee recommended in 1999 that a Parliamentary Privileges Act should be enacted, but the British Parliament has not yet done so.

The current cases provide a reason to examine the issue of privileges. It would be useful to have a debate on whether privilege should be just a power to provide legal immunity to MPs for their parliamentary work, or whether it should also extend to the power of contempt of Parliament.