Codification of Parliamentary Privileges

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July 11, 2017

Click here for Part I

What is the issue?

With no codified laws for what constitutes a breach of privilege, it has become a tool in the hands of the ruling party.

Is the power of privilege too wide?

  • In our country, the Parliament enjoys almost supreme powers and legislators face no threat from government.
  • Legislators have the power to be the sole judges to decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of a breach.
  • Thus, it can be said it is too wide a power that clearly impinges on constitutionalism, i.e. the idea of limited powers.

What are the constitutional provisions?

  • Article 105 pertains to the powers, privileges, etc, of Parliament, its members and committees while Article 194, protects the privileges and powers of the houses of legislature, their members and committees in the states.
  • They state that the privileges ‘until so defined’, shall be those of the “House of Commons” (lower house of the Parliament of the UK).
  • The expression “until so defined” does not mean an absolute power not to define privileges at all.

How our parliament is different from British parliament?

  • The drafters of the Constitution committed the mistake of putting Indian Parliament on a par with the British House of Commons.
  • The supremacy of British Parliament is not applicable to India. In India the Constitution is supreme, not the Parliament.
  • Also, British Parliament remained the highest court till 2009.
  • Thus, Indian legislatures and British Parliament differ not merely as regards their general political status but also in the matter of legal powers.

Is codification of privileges necessary?

  • Legislators have been arguing that codification of privileges will harm the sovereignty of Parliament.
  • Today, by sovereignty, we mean ‘popular sovereignty’ and not ‘parliamentary sovereignty’.
  • Our legislators basically resist codification, because it would make the privileges subject to judicial scrutiny.
  • Also, it would make evolution of new privileges not possible.
  • Our legislators also have protection from arrest in civil cases 40 days before the session, during the session and 40 days after the session.
  • It means, the MPs & MLAs have protection from arrest for more than 365 days in a year.
  • Thus, the need for codification cannot be stressed enough.


Source: The Hindu

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