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?

Article 105 expressly codifies only freedom of speech in Parliament and immunity for anything said or any vote given in the House; Article 105(3) leaves the rest to be defined by Parliament by law, and until then freezes privileges as they stood before the 44th Amendment (1978) — effectively the inherited House of Commons corpus. Parliament has never enacted such a law.

Why privileges remain uncodified

• Fear of judicial review: once codified, privileges become ordinary law, fully testable against Fundamental Rights; uncodified privilege enjoyed primacy over Article 19(1)(a) in the Searchlight case (M.S.M. Sharma, 1959).
• Flexibility: each House prefers judging breach of privilege and contempt case by case rather than binding itself to fixed definitions.
• Deterrence: the very vagueness of privilege is seen as protecting the dignity and authority of the House.
• No political incentive: members benefit from open-ended powers, so no consensus for self-limitation has emerged.

Costs and the way forward

• Uncodified privilege breeds friction with rights and courts: the Keshav Singh reference (1964) applied Articles 20–21; Raja Ram Pal (2007) held expulsions judicially reviewable; Sita Soren (2024) denied privilege protection to bribery.
• Enact a Parliamentary Privileges Act under Article 105(3), on the lines of Australia's Parliamentary Privileges Act, 1987, defining privileges, contempt and penalties.
• Build in fair-procedure safeguards and harmonize privileges with Articles 19 and 21; the NCRWC too favoured defining and delimiting them.
• Interim: comprehensive, published privilege-procedure rules in each House.

Privileges exist to secure the House's free functioning, not members' personal status; codification with due process would align this colonial inheritance with constitutionalism.