04 September 2011

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Understand the breach of privilege notice what is breach of privilege notice Kiran Bedi, Prashant Bhushan and Arvind Kejriwal got Privilege Notice

Understand the breach of privilege notice what is breach of privilege notice Kiran Bedi, Prashant Bhushan and Arvind Kejriwal got Privilege Notice

Parliament derives its powers to initiate contempt for breach of privilege under Article 105 of the Constitution.

Any statement this means derogatory statements or general statements made by anyone in India can receive the breach of privilege notice if
Members of Parliament felt that they lowered the dignity of Parliament — could warrant the issuing of contempt notice for breach of privilege and the matter could be referred to the Privileges Committee.

In England The powers of the House of Commons are called Parliamentary privileges.
In India these privileges are enjoyed by upper house and lower house, central government and state government elected politicians enjoy these rights.

The powers are enjoyed by Parliament as well as state legislature.
These legislative privileges are embodied in Articles 105 and 194 of the constitution.
Article 105 provides for privileges for the Lok Sabha and the Rajya Sabha i.e. Parliament. Article 194 is for state legislature.

Both articles have their corresponding precursors in Sections 28 and 71 respectively of the Government of India Act of 1935.

What happens if elected politician feel that general statement made by Indian citizen has lowered the dignity of Parliament.
1. Motion is moved
2. Contempt or Privilege Notice is served
3. If accused person says sorry the matter is closed.
4. If accused does not say sorry then the committee will issue contempt notice to the persons concerned, seeking their comments, and they can give their defence or justify the statements or tender an apology.
5. The committee can dispose of the matter if it is satisfied with the reply; if not, it can call them to appear before the committee, either in person or through their lawyers to present their case.
6. committee enjoys quasi-judicial power
7. it can issue a warning, admonish or reprimand the contemnors or send the contemnors to jail and normally the maximum punishment would be till the last sitting of the House.

3 Members of Team Anna received breach of privilege notices for their remarks against Parliamentarians.
Which Members received the Breach of privilege notice?
1. Kiran Bedi
2. lawyer Prashant Bhushan
3. Arvind Kejriwal

Regarding this notice Kiran Bedi said that she will not "apologise" for her remarks against politicians, but intends to show a "bigger mirror" to the House on the conduct of lawmakers.
"If I get a notice, I would say I am sorry I will not be able to say sorry. If I get an opportunity I will go before the Committee and will show a bigger mirror to Parliament,"
The privilege notice against Bedi came as she accused politicians of wearing "several masks" at the same time, drawing the ire of MPs from both Houses.

Prashant Bhushan said that “MPs take bribes to pass laws”.
Bhushan told, “if speaking the truth in public interest amounts to breach of privilege, then time has come for the country to review the whole notion of parliamentary privileges." He has been asked to file a reply by September 14.

Privilege Notice is based on the system of British law.
Our all the laws are based on British system and made by British prior to our Independence and we Indians have not changed them.
Breach of Privilege notice is based the principles of the British House of Commons.

Article 105 in the Constitution of India
105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof
(1) Subject to the provisions of this constitution and 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 be 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

History of Breach of Privilege Notice and Indian Courts –

March 1952 –
A journalist Homi Mistry was arrested in Bombay and taken in custody to Lucknow, to be produced before the Speaker of the Uttar Pradesh Legislative Assembly to answer a charge of breach of privilege, a constitution bench of the Supreme Court set him free since it was a breach of one of his fundamental rights:
Article 22(2) says that, that no person shall be detained in custody (beyond a period of 24 hours) without the authority of a magistrate.
Fundamental rights, the bench of five judges said, would override legislative privilege.

December 1958 –
In the case of Pandit M.S.M. Sharma v.Shri Sri Krishna Sinha and Others, [1959] Supp.1 S.C.R. 806, a portion of the speech made by a member of a Legislative Assembly had been expunged by the orders of the Speaker. Nonetheless, the speech was published in its entirety in a newspaper of which the petitioner was the editor. He was called upon to show cause why action should not be taken against him for breach of privilege of the Legislative Assembly and he challenged the notice by a petition under Article 32.

In this case of M.S.M. Sharma, editor of an English language newspaper, Searchlight, was called upon by the Speaker of the UP Legislative Assembly to show cause why he should not be proceeded in contempt of the House for publishing expunged portions of a member’s speech, a constitution bench of five judges (by majority 4:1) refused to interfere.

The court said that 1952 Judgment was not binding and Article 194(3) — privileges of a state legislature — took precedence over Article 19(1) (a).
Article 19(1) (a) — right to freedom of speech and expression
The court said that “to determine whether there has in fact been any breach of its privilege” It must be left to the House itself.

In this case Indian citizens lost the Freedom of speech and politicians won.

Year 1965 – Keshav Singh
Special Reference No.1 of 1964,[1965] 1 S.C.R. 412 known more commonly as Keshav Singh's case or the Privileges case, deals extensively with the scope of the privileges of legislative bodies.
The Presidential Reference was made in the following circumstances:
The Legislative Assembly of the State of Uttar Pradesh committed one Keshav Singh, not one of its members, to prison for contempt. The warrant it issued was a general warrant, in that it did not set out the facts which had been found to be contumacious. Keshav Singh moved a petition under Article 226 challenging his committal and he prayed for bail. Two learned judges of the Lucknow Bench of the High Court ordered that Keshav Singh be released on bail pending the decision on the writ petition.

The Legislative Assembly passed a resolution requiring the production in custody before it of Keshav Singh, the advocate who had appeared for him and the two judges who has granted him bail.

The judges and the advocate filed writ petitions before the High Court at Allahabad.
A Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly's resolution.

The Legislative Assembly modified its earlier resolution so that the two judges were now asked to appear before the House and offer an explanation.

The President thereupon made the Special Reference.
Briefly put, the questions he asked were:
Whether the Lucknow Bench could have entertained Keshav Singh's writ petition and released him on bail;

1. whether the judges who entertained the petition and granted bail and Keshav Singh and his advocate had committed contempt of the Assembly;

2. whether the Assembly was competent to require the production of the judges and the advocate before it in custody or to call for their explanation;

3. whether the Full Bench of the High Court have entertained the writ petitions of the two judges and the advocate and could have stayed the implementation of the resolution of the Assembly;

4. whether a judge who entered or dealt with a petition challenging any order of a Legislature imposing penalty or issuing process against the petitioner for its contempt or for infringement of its privileges and immunities committed contempt of the Legislature

5. Whether the Legislature was competent to take proceedings against the judge in the exercise of its powers, privileges and immunities.

The adjectival clause "regulating the procedure of the Legislature" in Article 194(1) governed, it was held, both the proceeding clauses relating to "the provisions of the Constitution" and "the rules and standing orders."

The Supreme Court by a majority of 6:1, through an elaborate and learned opinion delivered by Gajendragadkar, C.J., held that in India notwithstanding a general warrant issued by the Assembly, the Courts could examine the legality of the committal in proper proceedings.
A special constitution bench of seven judges of the Supreme Court (in a presidential reference) reaffirmed the view expressed in the Searchlight Case (1959) — that Article 19(1) (a) could not be invoked when there was contempt of the legislature.

Now the time has come to review those powers of Parliament which control the freedom of Speech of Indian citizens.

In many countries codification of legislative privileges has taken place. Myanmar, Sri Lanka, Kenya, South Africa, Malaysia and Zambia are examples of this situation

Now the time has come that India should also codify the legislative privileges which will bring the clarity and understanding and equality among Indian citizens.

Its magic of democracy that servants control the freedom of speech of his master.

Today or tomorrow we Indian citizens will get the full freedom of speech.

For me I do not think Team Anna has done anything wrong including Om Puri.

If in your office one of the employee is sleeping what you will say?

If in your office few employees do not allow others to work what you will say?

If in your office your servants if through boots on each other or do the fighting using chair or hide the things then what you will say regarding that actions of your servants.

Now the time has come that Honorable Supreme Court of India should fix what actions or statements of Indian citizens will amount to lowering or defame the parliament.

If someone does not like what xyz is saying then one should ignore it or other option is ask him what is the problem why you are calling me uneducated?
Then solve his problem or by having debate let him know you are not uneducated openly and automatically if he is satisfied he will say I was under wrong impression and I was misled so I said that.

I do not support for any speech one should be sent to jail.
Only a speech which encourages people to murder or rape should be banned.
A speech which directly says and orders community to do any crime should be banned.

One should not be banned from expressing his free will and thought.

Reality views by sm –
Sunday, September 04, 2011

Tags- News Breach of privilege notice Kiran Bedi, Arvind Kejriwal Bhushan Team Anna Parliament


Arti September 04, 2011  

Nice informative post sm, thanks for sharing.

aativas September 04, 2011  

By these standards, how many MPs should get Privilege Notice? Just wondering. Is there any case of a MP being served this notice?

R. Ramesh September 04, 2011  

yes arti..my friend here sm, always writes informative articles..proud of him..:)

SM September 05, 2011  


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