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 uncodified and unenumerated privileges to continue. Assess the reasons for the absence of legal codification of the ‘parliamentary privileges’. How can this problem be addressed?
Introduction
Article 105 grants Parliament and its members powers, privileges, and immunities, largely based on the UK House of Commons at the Constitution's commencement, essential for their effective functioning.
Body
Reasons for Absence of Legal Codification
- Fear of judicial scrutiny, potentially limiting parliamentary supremacy.
- Desire for flexibility to address unforeseen situations.
- Historical legacy of the Westminster model.
- Lack of political consensus among parties on their scope.
Problems and Measures to Address
Uncodified privileges lead to ambiguity, potential arbitrary exercise, and conflicts with fundamental rights. To address this:
- Partial codification of essential privileges, defining their scope and limitations.
- Establishing a Joint Parliamentary Committee for comprehensive review and recommendation.
- Developing a robust code of conduct and strengthening internal parliamentary mechanisms for self-regulation and accountability.
Conclusion
Balancing parliamentary autonomy with accountability through codification is crucial, ensuring privileges serve their purpose without infringing on citizens' rights.
139 words · target ~150
The answer should evaluate the reasons for the absence of legal codification of parliamentary privileges and then suggest practical ways to address this problem.
Suggested structure
Introduction: Defining Parliamentary Privileges and Article 105
Reasons for the absence of legal codification
Problems arising from uncodified privileges
Measures to address the problem of uncodified privileges
Conclusion: Balancing privileges with accountability
Key points
Article 105 grants Parliament and its members certain powers, privileges, and immunities, largely based on the UK House of Commons at the commencement of the Constitution.
Reasons for non-codification include fear of judicial scrutiny, desire for flexibility, historical legacy (Westminster model), and lack of political consensus among parties.
Uncodified privileges lead to ambiguity, potential for arbitrary exercise, conflicts with fundamental rights (e.g., freedom of speech, right to information), and lack of clarity for citizens and media.
Solutions include partial codification of essential privileges, clearly defining their scope and limitations, while retaining some flexibility for unforeseen circumstances.
Establishing a Joint Parliamentary Committee to review and recommend a comprehensive code of privileges, ensuring wider consultation and consensus.
Developing a robust code of conduct for members and strengthening internal parliamentary mechanisms for addressing privilege issues, promoting self-regulation and accountability.
Common mistakes
Not addressing both parts of the question (reasons and solutions).
Confusing parliamentary privileges with fundamental rights or general legislative powers.
Providing only a descriptive account without critical assessment of the reasons or practical solutions.
Suggesting extreme solutions like complete abolition or full codification without nuance.
Difficulty: Medium — The question requires knowledge of a specific constitutional article (105), an understanding of the historical context of parliamentary privileges, and the ability to critically 'assess' reasons and propose practical, nuanced solutions. It involves balancing legislative autonomy with accountability and fundamental rights, which demands analytical depth.