Q3. The ‘Powers, Privileges and Immunities of Parliament and its Members’ as envisaged in Article 105 of the Constitution leave room for a large number of uncodified and unenumerated privileges to continue. Assess the reasons for the absence of legal codification of the ‘parliamentary privileges’. How can this problem be addressed?

Model Answer:

Introduction

Article 105 of the Indian Constitution grants Parliament and its members certain powers, privileges, and immunities necessary to function effectively. However, many of these privileges remain uncodified and undefined, creating ambiguity around the scope and application of these powers. The lack of codification has led to debates on transparency, accountability, and judicial intervention.

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Reasons for the Absence of Codification

• Inherited British Practice: India inherited the concept of parliamentary privileges from the British system, where privileges remain largely uncodified. This allows flexibility in parliamentary functions, a precedent continued in India.
• Need for Functional Autonomy: Codifying privileges may restrict the flexibility of Parliament to address issues dynamically. Unwritten privileges allow Parliament to respond to specific circumstances without being bound by rigid rules.
• Political Sensitivities: Codification might invite scrutiny and opposition, as it could be perceived as an attempt to expand or redefine parliamentary powers. The political repercussions may deter codification efforts.
• Judicial Intervention Concerns: Codification may open the door to increased judicial review, potentially undermining the principle of parliamentary supremacy. Undefined privileges allow Parliament to operate with minimal external interference.
• Complexity of Enumeration: Parliamentary privileges cover a broad range of situations, and an exhaustive list might be impractical to frame and enforce, complicating legislative operations.

Addressing the Issue

• Selective Codification: Codifying core privileges—such as freedom of speech within Parliament and protection from certain legal actions—could reduce ambiguity while preserving essential parliamentary functions.
• Judicial Guidelines: Establishing clearer judicial guidelines on interpreting Article 105 could create a balance, allowing the judiciary to address privilege-related disputes without extensive codification.
• Parliamentary Reforms and Committees: A parliamentary committee could periodically review privileges, updating members and the public on essential privileges while documenting practices for greater transparency.
• Public Awareness: Raising awareness and providing clarity on specific privileges can enhance public trust in the legislative process, reducing concerns about misuse.

Conclusion

‍While parliamentary privileges are essential for legislative independence, the absence of codification has created scope for misuse and ambiguity. A balanced approach, combining selective codification with judicial guidelines, can preserve parliamentary autonomy while addressing concerns about transparency and accountability.

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