Article 105 of the Constitution grants extensive powers, privileges, and immunities to the Parliament and its members, yet these remain largely uncodified and unenumerated. This absence of legal codification can be attributed to various factors. Firstly, the dynamic nature of parliamentary proceedings and the evolving nature of democracy make it challenging to comprehensively list privileges without limiting parliamentary autonomy. Secondly, attempts to codify these privileges may infringe upon the separation of powers, as the judiciary might find itself interpreting and enforcing laws that could potentially encroach upon parliamentary sovereignty. Moreover, the historical precedence and conventions surrounding parliamentary privileges make it difficult to encapsulate them within a rigid legal framework. To address this issue, a balance must be struck between preserving the inherent privileges of Parliament and ensuring transparency and accountability. One approach could involve establishing a parliamentary committee tasked with periodically reviewing and updating the list of privileges, subject to oversight and scrutiny by the judiciary to prevent abuse of power. Additionally, enhancing public awareness and debate on the scope and limits of parliamentary privileges could foster greater accountability and ensure that these privileges serve the broader interests of democracy.
Tag: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Decoding the Question:
- In the Introduction, try to define Parliamentary Privileges and their importance.
- In Body,
- Write various reasons for the absence of legal codification of the parliamentary privileges.
- Also mention how this can be addressed.
- In Conclusion, try to conclude by giving the recommendations by the Constitution Review Commission.
Answer:
The origins of Parliamentary powers in India can be traced back to 1833 when the governor-council general’s was expanded to include a fourth member following the 1833 Charter Act. A new form of legislative apparatus was created. This created the groundwork for an institution that, through time, evolved into a full-fledged legislative body.
Parliamentary privilege is the total of specific rights enjoyed by each House collectively and by members of each House individually, which outweigh those owned by other groups or persons and without which they could not execute their tasks. Some privileges are based purely on Parliamentary law and custom, while others are governed by statute.
Parliamentary privileges are based on the following sources:
- Constitutional provisions
- Various laws made by the Parliament
- Rules of both the Houses
- Parliamentary conventions and
- Judicial interpretations.
Individual Privileges
- During the session of Parliament, from 40 days before the beginning to 40 days after the finish, no member may be arrested. This privilege is only granted in civil matters; it is not granted in criminal or preventive detention situations.
- In Parliament, members have the right to free expression. No member of Parliament or its committees is accountable in any court for anything said or voted in Parliament or its committees. This independence is limited by the Constitution’s provisions as well as the norms and standing orders that govern Parliament’s functioning.
- Members of Parliament are exempt from jury duty when Parliament is in session. They have the right to decline to give evidence and testify in court.
Collective Privileges
- The ability to publish reports, debates, and proceedings, as well as the ability to prevent others from doing so. It can publish truthful reports of Parliamentary proceedings without the House’s authorization under the freedom of the press. However, in the case of a House meeting held in secret, this right of the press does not apply.
- Keep strangers out of the gathering and organize covert sessions to address vital issues.
- Make rules to govern its own procedure and commercial activity, as well as to adjudicate on such issues.
- Right to immediate notification of a member’s arrest, custody, conviction, imprisonment, and release.
- Initiate inquiries and compel a person’s attendance.
- The courts are not allowed to investigate a House’s or its committees’ proceedings.
- Without the consent of the Presiding officer, no one (whether a member or an outsider) can be arrested, and no legal process (civil or criminal) can be served within the House’s boundaries.
- Judicial interpretations.
Reasons for the absence of legal codification of the parliamentary privileges:
- Articles 105 and 194 clearly lay down that the “power, privileges and immunities of the legislature shall be as may from time to time be defined by the legislature, and until so defined, shall be those of the House of Commons”.
- Against the separation of power: Legislators have been arguing that codification of privileges will harm the sovereignty of Parliament. The codification of privileges is basically resisted because it would make the privileges subject to fundamental rights, and hence judicial scrutiny and evolution of new privileges would not be possible.
- For effective functioning of democracy and the Parliament, Dr. Ambedkar defended it by saying that specific privileges are needed for Parliament to function effectively. The National Commission to Review the Constitution (2003), noted that Privileges are intended to facilitate Parliamentarians to do their function of representing citizen’s voices and not curbing their right to speech.
The absence of codification of Parliamentary privileges has led to misuse of these rights and leading to hateful speeches, derogating remarks, unnecessary stalling of the houses, etc.
The problem can be addressed by:
- The Parliamentary Privilege Committee of the UK in 1999 distinguished between the Parliament disciplining its own members and the Parliament punishing non-members. It suggested that Parliament’s jurisdiction over contempt committed by non-members should be transferred to the Judiciary. This can balance the essential protection of parliament and the freedom of the individual.
- The Privilege Committee can be made impartial by following all procedures of natural justice while recommending punishment for the breach of privilege.
- The Monopoly of one party over the committee should be prevented. Such unbalanced representation increases the chances of bias. Guidelines should be laid down for the Speaker to give equal representation to all parties while nominating the members.
- The Privilege Committee should be prevented from being the judge in its own cause. There should be proper guidelines for the unbiased working of the privileges committee.
- The chairperson of the House should be obliged to submit a report to the President about sanctions, which can be put against members.
- An independent body should be formed to scrutinize the proceedings of the House regularly and submit a report to the President.
- The appropriate provisions can be made to empower the President to take independent action against the unruly members.
- More visitors from among common people can be allowed, which will lead to public scrutiny of the behavior of the members in the House.
Members of parliament are granted privileges for the parliament to work smoothly. If privileges are not granted following fundamental rights, the basic core of democracy for the preservation of citizens’ rights will be lost. It is the parliament’s responsibility not to infringe on any other constitutionally protected rights. They must always remember that abilities do not corrupt them. As a result, it is frequently effectively determined that in determining privileges, the house cannot simply adopt a British equivalent, but must decide and evaluate if it matches Indian Democracy and does not insult the state’s Republic characteristic.
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