Q.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?

Body

graph TD;
    ALC["Absence of Legal Codification"] --> FF["Flexibility in Functioning"];
    ALC --> FLS["Fear of Limiting Scope"];
    ALC --> LPC["Lack of Political Consensus"];
    ALC --> TPS["Tradition of Parliamentary Supremacy"];
    ALC --> JR["Judicial Restraint"];

Reasons for the Absence of Legal Codification of Parliamentary Privileges

• Historical Legacy and Conventions:

  • Indian parliamentary privileges are largely based on British parliamentary conventions, where privileges are not fully codified but exist as unwritten practices. The Indian Constitution adopted these conventions, with the framers deliberately choosing not to codify them, believing that unwritten conventions would provide the necessary flexibility in parliamentary functioning.
  • Example: In the Constituent Assembly Debates, leaders like Dr. B.R. Ambedkar emphasized the flexibility offered by conventions over strict codification, reflecting the desire to retain the adaptability that conventions provide.

• Fear of Reducing Flexibility:

  • Codification of parliamentary privileges would entail defining specific rights and responsibilities, potentially limiting Parliament's ability to adapt to unforeseen challenges. An un-codified system allows greater flexibility in interpreting privileges depending on the situation.
  • Example: The lack of codification allows Parliament to act swiftly in cases of breach of privilege or contempt without being constrained by rigid legal definitions.

• Complexity of Defining Privileges:

  • Parliamentary privileges cover a wide range of aspects, from freedom of speech in Parliament to immunity from arrest, and defining these comprehensively in law is a complex task. Given the diversity of parliamentary functions, a one-size-fits-all legal codification could be difficult to implement effectively.
  • Example: The freedom of speech granted under Article 105 is vast, but judicial interpretations have refined its limits, making it difficult to translate these nuanced understandings into law.

• Judicial Deference to Parliamentary Sovereignty:

  • The judiciary has generally shown deference to parliamentary privileges, recognizing the autonomy of Parliament in regulating its own affairs. Courts have been reluctant to interfere in matters of parliamentary privilege unless fundamental rights are at stake, which has contributed to the reluctance to codify these privileges.
  • Example: In the Pandit M.S.M. Sharma vs. Sri Krishna Sinha (1959) case, the Supreme Court ruled that Article 105 gives Parliament the authority to regulate its privileges, deferring to the institution’s discretion.

• Political Hesitation:

  • There is a political reluctance to codify privileges due to concerns that such a move might restrict the powers of Parliament. MPs fear that codification could limit their freedom of speech or expose them to legal scrutiny outside the House for actions taken inside the House.
  • Example: Political parties and parliamentary committees have discussed codifying privileges, but there has been little consensus on the scope and extent of codification, leading to a continued status quo.

Challenges Arising from Lack of Codification

• Ambiguity and Misuse:

  • The absence of codification leaves room for arbitrary interpretation of privileges by Parliament. This can lead to misuse, where members claim privileges in cases where they might not apply, causing conflicts with fundamental rights and freedom of the press.
  • Example: In 2017, the Karnataka Assembly sentenced two journalists to imprisonment for "breach of privilege" over their reporting, raising concerns over whether parliamentary privilege was being misused to stifle media freedom.

• Judicial Conflicts:

  • The un-codified nature of privileges often leads to conflicts between Parliament and the judiciary, particularly when fundamental rights are involved. The judiciary’s role in upholding Article 19 (Freedom of Speech and Expression) often clashes with parliamentary privileges, leading to confusion over the scope of each.
  • Example: In the Searchlight case (1964), the Supreme Court ruled that parliamentary privilege could not override a citizen’s right to freedom of speech, creating a precedent for how courts balance these two aspects.

• Lack of Clarity for Citizens:

  • The public and even members of Parliament may not fully understand the extent or limits of parliamentary privileges, leading to confusion and a lack of accountability. Without clear guidelines, citizens may find it difficult to challenge arbitrary decisions made by Parliament under the guise of privilege.
  • Example: Privileges like freedom from arrest during a session are often misunderstood, leading to misperceptions about the immunity of MPs from legal action.

How the Problem Can Be Addressed

• Partial Codification of Key Privileges:

  • A partial codification approach could be adopted, where key parliamentary privileges, such as freedom of speech, immunity from arrest, and breach of privilege cases, are defined more clearly in law. This would provide clarity without sacrificing the flexibility needed for parliamentary functioning.
  • Example: The Privileges Act of 1987 in the UK codified certain aspects of parliamentary privilege while leaving others to convention. India could take a similar approach by codifying essential privileges while retaining flexibility in less defined areas.

• Clear Definition of Limits:

  • Any codification must clearly define the limits of parliamentary privileges, ensuring that they do not infringe on fundamental rights, such as freedom of the press or the right to privacy. This would help balance parliamentary autonomy with the constitutional rights of citizens.
  • Example: Parliament could enact legislation outlining when and how privileges can be exercised, as well as a review mechanism to address claims of misuse of privilege.

• Greater Judicial Guidance:

  • The judiciary could take a more active role in providing interpretative guidelines on parliamentary privileges, helping to establish precedents for when privileges can be invoked and when they must yield to fundamental rights.
  • Example: In cases like N. Ravi vs. T.N. Legislative Assembly (2005), where the privileges of legislators clashed with freedom of the press, the judiciary could offer clearer directives to avoid ambiguity.

• Consultative Process for Codification:

  • A Parliamentary Privileges Commission could be set up to study and recommend ways to codify privileges. This commission could include parliamentarians, legal experts, and judicial representatives to ensure that the codification process reflects both parliamentary autonomy and constitutional norms.
  • Example: The Punchhi Commission on Centre-State Relations (2007) highlighted the need for clarity in the codification of privileges. A similar consultative approach can be adopted for drafting legislation on parliamentary privileges.

• Promoting Public Awareness:

  • Efforts must be made to educate the public, media, and parliamentarians themselves about the scope and limits of parliamentary privileges. This could help prevent misuse and ensure greater accountability.
  • Example: Parliamentary orientation programs for newly elected MPs could include detailed sessions on the scope and limits of privileges, ensuring they are well-informed and less likely to misuse these powers.