The Powers, Privileges and Immunities of Parliament and its Members as envisaged in Article 105 of the…

Question

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 un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of legal codification of the parliamentary privileges. How can this problem be addressed?

Ghissu Editorial · Accepted Answer

Parliament has not codified its privileges mainly because members fear that a statute would expose them to Fundamental Rights review and would curb their flexibility and self-judgment. A short law on Australia's 1987 model, protecting only privileges that pass the Sita Soren (2024) necessity test, would resolve the problem.

**Introduction**

Article 105 names only freedom of speech and immunity for votes and speeches, leaving other privileges to be "defined by Parliament by law" and, until then, tied to House of Commons practice. No such law has followed.

**Reasons Behind the Absence of Codification**

1. **Fear of judicial review**: A statute would be "law" under Article 13 and testable against Fundamental Rights, whereas M.S.M. Sharma (1959) let the uncodified privilege prevail over Article 19(1)(a).
2. **Flexibility against new contempts**: An open power punishes new obstruction, but enabled Tamil Nadu's 2003 arrest order against The Hindu's journalists and Karnataka's 2017 jail term for two editors.
3. **Claim of sole judgment**: The House wants to judge its own privileges, though the Keshav Singh reference (1964) lets courts test whether one exists.
4. **No political will**: Members resist trimming their own powers despite the NCRWC (2002) urging a law.

SKETCH: timeline | Courts Fill the Vacuum
- 1959 :: Privilege over Art 19
- 1964 :: Courts test existence
- 2007 :: Expulsion reviewable
- 2024 :: Bribery not protected

**Addressing the Problem of Uncodified Privileges**

1. **Enact a privileges law**: Follow Australia's Parliamentary Privileges Act 1987, which defined contempt, capped penalties and ended expulsion.
2. **Necessity as the filter**: Protect only what passes the Sita Soren (2024) test of collective functioning and essential duties, keeping bribery and vandalism outside.
3. **Due process and free press**: Give notice, hearing and proportionate penalties, exempt fair reporting, and add a legislators' code of conduct as the 2nd ARC (2007) urged.

**Conclusion**

Non-codification rests more on institutional comfort than necessity, and courts are filling the gap case by case. A short law guarding only what the House truly needs would keep Parliament independent yet within the Constitution.

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