Answer:

Parliamentary privilege is the sum of certain rights, immunities and exemptions enjoyed by each House collectively, and by the members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

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.

Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its members. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution belong primarily to each House as a collective body, for the protection of its members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by members.

Legislative privileges are provided so that legislatures can discharge their duties without fear and favor and without external interference. These sections protect the freedom of speech of parliamentarians and legislators; insulate them against litigation over matters that occur in these houses.

However, these sections have been prone to misuse. For e.g. In 2003, the Tamil Nadu assembly Speaker directed the arrest of five journalists for publishing articles critical of the AIADMK government. In 2017, the Karnataka assembly Speaker ordered the imprisonment of two journalists for a year based on recommendations in two separate reports of its privilege committees.

Thus, there is a felt need for codification of these parliamentary privileges because of following reasons:

♤ Too wide powers: Our 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 breach. It is too wide a power, which clearly impinges on constitutionalism, i.e. the idea of limited powers.

♤ Increased misuse: There have been increasing instances of the misuse of the privileges by legislatures in India. Though constitution makers have left the space for the codification of the privileges, there have been no such steps taken by the parliament thereafter. This has left vagueness and ambiguity in the privileges, making them prone to misuse.

♤ Lack of counterparts in other democracies: The U.S. House of Representatives has been working smoothly without any penal powers for well over two centuries. Australia too codified privileges in 1987. In fact, the British House has itself broken from the past. Acts and utterances defamatory of Parliament or its members are no more treated as privilege questions.

Further codification would enhance accountability of legislatures as once the privileges are embodied in the legislature enactment, it would be open to judicial scrutiny and would be tested on the touchstone of its consistency with constitutionalism. Also, the argument that codification of privileges will harm the sovereignty of Parliament does not stand as by sovereignty, we mean ‘popular sovereignty’ and not ‘parliamentary sovereignty’.

The constitution review commission headed by Justice M.N. Venkatachaliah had also recommended that privileges should be defined and delimited for the free and independent functioning of the legislatures. Holding freedom of speech subject to legislative privileges is not in tune with modern notions of human rights. The balance between fundamental rights and parliamentary privilege must be re-examined.