The Committee of Privileges

The other route, and the objection to it

A House need not use the Committee of Privileges at all, and in 2005 it did not.

In Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, the allegation was that members had accepted money for raising questions in the House. The Lok Sabha appointed an Inquiry Committee, not the Committee of Privileges. That Committee found on the material, including video footage, that the acceptance of money had a direct connection with the work of Parliament and constituted conduct unbecoming of Members of Parliament and also unethical, recorded its deep distress that the practice had eroded the credibility of Parliament as an institution and a pillar of democracy, and recommended expulsion. The report was laid on the table, a motion was adopted on 23 December 2005 expelling ten members, and the Secretariat notified the expulsion the same day.

One member of the Committee dissented, and his ground is the point of this section. In his understanding of the procedure established by law, no member could be expelled except for breach of privileges of the House, and the matter must therefore be dealt with according to the rules of the Privileges Committee.

So the choice of committee is itself a question, and a good answer raises it. The Committee of Privileges has a settled procedure and a defined jurisdiction. An ad hoc Inquiry Committee has whatever procedure the House gives it. Where the punishment contemplated is expulsion, the choice between the two determines what procedure the member gets, and that is exactly the argument the dissenting member made and the petitioners took to the Supreme Court.

The criticism the House itself has made

The Supreme Court reproduced, from the parliamentary record, a statement of the case against the jurisdiction as it stands. It is worth using in an answer because it is a criticism made inside the House and quoted by the Court, which is a stronger thing to cite than an academic complaint.

The argument runs: in India, unlike England, the House itself judges the matter, so that the law of privileges is a form of criminal law and a citizen and his fundamental rights may clash with the concepts of the dignity of the House. The essence of criminal law is that it is easily ascertainable. The law of privileges, on the other hand, is bound to remain vague and somewhat uncertain unless codified; and here it has not been codified except in rule 222. Because the House judges, it is important to ensure that the strictest judicial standards and judicial procedures are followed; and the complaint made was that in the instance under discussion the Privileges Committee's deliberations were neither judicial nor impartial nor objective, followed no established rules of procedure and did not apply the principles of equity and natural justice, so that justice was not seen to be done. Even the slightest suspicion of the Committee of Privileges acting on political consideration or on the strength of the majority party may tend to destroy the sanctity and value of the privileges of Parliament.

Three propositions to take from that passage, each usable on its own.

Privilege functions as criminal law and lacks criminal law's certainty. An offence must be ascertainable in advance; a contempt is whatever the House says it is. Chapter 990 made the same point from the absence of any definition.

The House is prosecutor, judge and punisher. It receives the complaint, decides whether to admit it, refers it to its own committee, adopts the committee's finding and imposes the punishment.

And the majority on the committee is the majority in the House. Which is why the safeguard, if there is one, must come from outside: chapter 1090 works what the courts have done about it.

Composition and standing

The Committee of Privileges appears in the Rules' list of Standing Committees of the Lok Sabha with fifteen members, chapter 1000.

Note that it is a Standing Committee and not an ad hoc one. It is permanent, so unlike a Select Committee it does not die on reporting; and unlike the departmentally related committees its business is disciplinary rather than scrutinising. In the Rules' six-fold classification, chapter 1000, it belongs with the Enquiry Committees.

A worked example

A pamphlet accusing a member of corruption is circulated in the precincts of the House.

Step one. The member gives notice of a question of privilege.

Step two. The Speaker's consent. If it is withheld, that is the end.

Step three. The Speaker refers it to the Committee of Privileges.

Step four. The Committee issues notices to those said to have printed and distributed the pamphlet.

Step five and six. It inquires, and reports that they are guilty of contempt and should be reprimanded.

Step seven. The House resolves accordingly, and notices issue to them to appear and receive the reprimand.

One of them does not appear. The Speaker may issue a warrant and have him produced at the Bar: chapter 990, and Keshav Singh is the instance.

He then moves the High Court under article 226. The Court may entertain it, because a general warrant is not conclusive in India; it will ask whether the House had the power, whether article 21 is satisfied by the rules made under article 208, and, on chapter 1090's grounds, whether the privilege claimed exists.

Change the facts: the person accused is a member, and the punishment contemplated is expulsion. Now the choice of forum matters. The Committee of Privileges has a settled procedure; an ad hoc Inquiry Committee does not; and the dissenting member in 2005 said expulsion could only follow a breach of privileges dealt with according to the rules of the Privileges Committee.

What beginners get wrong

That any member can raise a question of privilege as of right. It requires the consent of the Speaker or the Chairman.

That the Committee punishes. It recommends; the House resolves.

That the Committee of Privileges is the only route. In 2005 the Lok Sabha used an ad hoc Inquiry Committee, and one member of that Committee dissented on that very ground.

That the Committee of Privileges is an ad hoc committee. It is a Standing Committee of fifteen members.

That the law of privilege is codified. It is not, and the criticism quoted above is that this leaves a jurisdiction operating as criminal law without criminal law's certainty.

Quick revision

Seven steps: notice by a member; consent of the Speaker or Chairman; reference to the Committee of Privileges or decision by the House; notices to the persons concerned; inquiry; report with findings and a recommended punishment; motion of the House.

Keshav Singh, sourced: complaint by the member named in the pamphlet; reference to the Privileges Committee; notices to four persons; three found guilty and reprimand recommended; Assembly resolution; notices to appear; two appeared 19 February 1964; the third did not, and the Speaker issued a warrant.

The 2005 route: an ad hoc Inquiry Committee, not the Committee of Privileges; findings on video footage that the acceptance of money had a direct connection with the work of Parliament and was unethical and unbecoming; expulsion of ten members by motion on 23 December 2005, notified the same day. One member dissented: no member may be expelled except for breach of privileges, to be dealt with according to the rules of the Privileges Committee.

The criticism, made in the House and quoted by the Court: privilege is a form of criminal law; criminal law must be easily ascertainable and privilege is bound to remain vague unless codified, being uncodified except in rule 222; the House itself judges, so the strictest judicial standards and procedures must be followed; and the slightest suspicion of the Committee acting on political consideration or on the strength of the majority party may destroy the sanctity of the privileges of Parliament.

Composition: a Standing Committee, fifteen members, in the Rules' Enquiry Committee category.

Test yourself

1. Describe the procedure on a question of privilege. A member gives notice of the question, stating the facts said to constitute the breach or the contempt. The Speaker, or the Chairman in the Council, decides whether to consent to its being raised; without that consent it goes no further and no reasons need be given. If admitted, the Chair may allow the House itself to consider the matter or, as is usual where facts must be found, refer it to the Committee of Privileges, a Standing Committee of fifteen members. The Committee issues notices to the persons concerned, takes such evidence as it thinks fit, hears them, records its findings and reports to the House with a recommendation as to punishment. The House then adopts a motion, and it is on that motion alone that the punishment takes effect; where the person does not comply, as in the Keshav Singh matter, the Speaker may issue a warrant for his arrest and production at the Bar.

2. What happened in the cash-for-questions matter and why is the choice of committee significant? The allegation was that members had accepted money for raising questions in the House. The Lok Sabha appointed an Inquiry Committee rather than referring the matter to the Committee of Privileges. That Committee found on the material, including video footage, that the acceptance of money had a direct connection with the work of Parliament and constituted conduct unbecoming of Members of Parliament and unethical, expressed deep distress that the practice had eroded the credibility of Parliament, and recommended expulsion; the House adopted a motion on 23 December 2005 expelling ten members, notified the same day. One member of the Committee dissented on the ground that in his understanding of the procedure established by law no member could be expelled except for breach of privileges of the House, and that the matter must therefore be dealt with according to the rules of the Privileges Committee. The choice matters because the Committee of Privileges has a settled procedure and a defined jurisdiction while an ad hoc Inquiry Committee has whatever procedure the House gives it, so that where the punishment contemplated is expulsion the choice of forum determines what procedure the member receives.

3. What is the principal criticism of the privilege jurisdiction? That it operates as a form of criminal law without criminal law's certainty. In India the House itself judges the matter, so that a citizen's fundamental rights may clash with the dignity of the House, its committees and its members. The essence of criminal law is that it is easily ascertainable, whereas the law of privileges is bound to remain vague and somewhat uncertain unless codified, and it has not been codified except in rule 222. Because the House judges, the strictest judicial standards and procedures ought to be followed, and the complaint made in the House and reproduced by the Supreme Court was that in the instance discussed the Committee's deliberations were neither judicial nor impartial nor objective, followed no established rules of procedure, did not apply the principles of equity and natural justice, and so failed the requirement that justice be seen to be done; the point being made that even the slightest suspicion of the Committee of Privileges acting on political consideration or on the strength of the majority party may destroy the sanctity and value of the privileges of Parliament.

4. Who exercises the real discretion in a privilege proceeding? The Chair, at the outset, and the majority, at the end. The Speaker or Chairman decides whether the question of privilege may be raised at all, a decision for which no reasons need be given and from which nothing follows if consent is withheld; that is the first and least noticed filter in the system. Thereafter the Chair decides whether the matter goes to the Committee of Privileges or to the House, and where a committee reports, the punishment takes effect only on a motion of the House. Since the composition of any committee reflects party strength and the motion is carried by the majority, the House is in substance complainant, prosecutor, judge and punisher, which is why any effective safeguard must come from outside it, and why the limited judicial review recognised in Raja Ram Pal matters.