PRIVILEGE MOTION

Introduction:

Parliamentary privileges are special rights, immunities, exceptions enjoyed by the members of the two houses of parliament and their committees. Originally the constitution envisaged two types of privileges under article 105 of the Indian constitution. One is freedom of speech in Parliament and the right of publication of its proceedings. Concept of parliamentary privilege in the Constitution of India has been taken from the British Constitution. The main motive of these privileges is to uphold the supremacy of the office of the Parliament and its members.

What is privilege motion?

The Members of Parliament are granted certain privileges individually and collectively so as to perform their duties properly. But if any of the members disregard or misuses any of these privileges or rights, it is considered as a breach of the privilege motion and is liable for punishment under the Parliamentary laws.

This motion is applicable for members of both Lok Sabha and Rajya Sabha and if any member notices another member or members breach it, they can move the privilege motion against the accused members.

What is Breach of Privilege Motion?

A breach of privilege is an infringement of any of the privileges of MPs or Parliament. Parliamentary privilege refers to the rights and immunities enjoyed by Parliament as an institution and Member of Parliament in their individual capacity, without which they cannot discharge their functions as endowed upon them by the Constitution.

What is the procedure?

• Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook govern privilege.
• It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
• The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House. Notices have to be given before 10 am to the Speaker or the Chairperson.
• The Speaker/RS chairperson is the first level of scrutiny of a privilege motion. The Speaker/Chair can decide on the privilege motion him or herself or refer it to the privileges committee of Parliament. 
• If the Speaker/Chair gives consent under Rule 222, the member concerned is given an opportunity to make a short statement. In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths.
• In the Rajya Sabha, the deputy chairperson heads the committee of privileges that consists of 10 members. A report is then presented to the House for its consideration.
• The Speaker may permit a half-hour debate while considering the report. The Speaker may then pass final orders or direct that the report be tabled before the House. A resolution may then be moved relating to the breach of privilege that has to be unanimously passed.

What impact it can have?

The Privileges are given to the members of Parliament so that they discharge their duty properly without any destruction. There have been various complains raised for the breach of the privilege motion. There have a few cases that had gather a lot of public attention. Few of the most important ones are mentioned below:

In most recent time, Shiv Sena MLA Pratap Sarnaik had moved the breach of privilege motion, accusing Arnab Goswami of using derogatory language against Maharashtra Chief Minister Uddhav Thackeray and Nationalist Congress Party Sharad Pawar. A similar privilege motion has been moved against actor Kangana Ranaut for claiming that Mumbai resembles Pakistan-occupied Kashmir.

In December, 2018,  breach of privilege motion was passed on to then Prime Minister and the Defense Minister of the country, claiming that they had misled the members of the Parliament and the Supreme Court on the Rafale fighter jet deal.

The most significant privilege motion was passed in 1978 against Indira Gandhi. The motion was passed on by the then Home Minister Charan Singh claiming excesses made by her during Emergency. She was found guilty and was expelled from the House. In another case, in 1976, Subramanian Swamy, MP was expelled from the Rajya Sabha for disgracing the Indian Parliament through his interviews to foreign journals.

Multiple other cases have been recorded and many have been rejected by the Committees of both the Houses of Parliament. The major reason to introduce the privilege motion was to ensure that no Minister misuses his powers once he gets the privileges of a person of higher authority.

Is Privilege motion same like contempt?

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 contempt of the House. Some of the important types of contempt of Parliament are, however, mentioned below:-

• Speeches or writings reflecting on the House, its Committees or Members;
• Reflections on the character and impartiality of the Chairman/Speaker in the discharge of his duty;
• Publication of false or distorted report of the Proceedings of the House;
• Publication oil expunged proceedings of the House;
• Publication of proceedings of secret Sessions of the House;
• Pre-mature publication of proceedings, evidence or report of a Parliamentary Committee;
• Reflections on the report of a Parliamentary Committee;
• 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;
• Offering bribes to Members to influence them in their Parliamentary conduct;  Intimidation of Members in connection with their Parliamentary conduct;
• 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;
• Obstructing or molesting officers of the House in the discharge of their duties; Giving false or misleading evidence or information deliberately to the House or a Committee thereof, by a Member or a witness.

What is the punishment for an individual who is found guilty of breaching the legislature’s privilege?

If the Committee finds the offender guilty of breach of privilege and contempt, it can recommend the punishment. The punishment can include communicating the displeasure of the state legislature to the offender, summoning the offender before the House and giving a warning, and even sending the offender to jail.

In the case of the media, press facilities of the state legislature may be withdrawn, and a public apology may be sought.

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Conclusion:

Both the Parliament and State Legislatures have a duty to look carefully before making any law, so that it doesn’t harm other rights. It is also a duty of the members to properly use these privileges and not misuse them for alternate purposes that is not in the favour of general interest of nation and public at large. Thus what we must keep in mind is the fact that power corrupts and absolute power corrupts absolutely. For this not to happen under the privileges granted, the public and the other governing body should always be on vigil.

Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries. 

Application for Probate

The application for probate shall be made by Petition. There shall be annexed to the petition a copy of the last will and testament of the deceased. If the will be not in the English language, an official translation thereof shall be annexed.

The original will shall be filed separately and kept by the Prothonotary and Senior Master in the strong room of his office in Bombay High Court.

There shall also be annexed to the petition:-

• A schedule of the property and credits which the deceased died  possessed of or entitled to at the time of his death which have or are likely to come to the petitioner’s hands,
• A schedule showing the debts of the deceased and all other items which by law the petitioners is allowed to deduct for the purpose of ascertaining the net estate of the deceased, and
• A schedule of property ,if any, held by the deceased is trust for another and not beneficially or with general power to confer a beneficial interest. The petition shall be in such variations as the circumstances of each case may require and shall be accompanied by-
• The vakaltnama signed by the petitioner, unless the petitioner appears in person;
• The executor’s oath;
• The affidavit of one of the attesting witnesses, if available; and
• A copy of the estate duty return, if filed with the Controller of Estate Duty.

Verification of petition. – The petition for probate shall be subscribed by the Petitioner and his Advocate on record (if any), and shall be verified by the petitioner in the manner prescribed for verification of plaints.

Payment of Court fess

The Court-fees of the notice issued by the Prothonotary and Senior Master shall be paid within three days after receipt of such notice.

Delay in application

In any case where an application for probate is made for the first time after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. Should the explanation be unsatisfactory, the Prothonotary and Senior Master may require such further proof of the alleged caused of delay as he may deem fit.

Unsigned or unattested will

 In cases in which it is not necessary that a will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property, the testator’s intention that it should operate as his testamentary disposition shall be clearly proved by affidavit or otherwise.

Notice of next-of-kin

1.  In all applications for Probate notice of the application shall be given to all the heirs and next-of-kin of the deceased mentioned in the Petition except to those whose consent has been filed in the proceedings.
2. In all applications for probate the citation shall be affixed on some conspicuous part of the Court house and also in the office of the Collector of Bombay.
3. No grant of probate shall be made until after the expiry of fourteen clear days from the date of the service of the citation or notice, and from the publication there of in newspapers, if any, and from the affixing thereof on the court house and in the Collector’s Office as the case may be, unless the Judge in Chambers otherwise directs.

Issue and return of processes

All processes and citations shall issue from and be returnable to the office of the Prothonotary and Senior Master and shall be prepared, signed and dated by him or one of his assistants and sealed executed and returned, in the same manner as processes in suits on the Original Side of the Court.

Service of citations

Citations shall be served personally when possible. Personal service shall be affected by leaving a true copy of the citation with the party cited and taking his acknowledgement on the original.

Caveat

Any person intending to oppose the grant of probate shall file a caveat in within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record.

Affidavit in support of Caveat

An affidavit in support of aCaveat shall be filed within eight days from the date of the filing of theCaveat, notwithstanding the Court vacations. Such affidavit shall state theright and interest of the caveator, and the grounds of the objections to theapplication.

A copy of the said affidavit shall be served by the caveator onthe petitioner or his advocate on record. If such affidavit be not filed withinthe prescribed time, the caveat shall not prevent the grant of probate. No such affidavit shall be filed after the expiry ofthe said eight days without an order of the Judge in Chambers.

Procedure on affidavit in support of caveat being filed

• Upon the affidavit in support of the Caveat being filed, the Petition shall be numbered as suit in which the Petitioner shall be the Plaintiff and the Caveator shall be Defendant. Notice of the fact that the Petition has been renumbered as a suit shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The Petition shall be treated as the plaint and the affidavit in support of the Caveat shall be treated as the written statement of the caveator. The procedure in such suit shall, as nearly as may be, be according to the procedure applicable to civil suits on the Original Side of the Court.
• Where there are two or more caveators and each of them has filed an affidavit in support of his caveat, separate suit numbers shall not be given to the petition, but all the caveators shall become party defendants in one suit.

Certified copies

Certified copies of wills and other documents furnished by the office shall be signed by the Prothonotary and Senior Master or one of his assistants and shall be sealed with the seal of the Court.

Registers of grants

Grants of probate issued during a calendar year along with the wills and their translations, if any, shall be copied out in registers to be maintained by the Prothonotary and Senior Master.