The Budget session of the Parliament was shook by the scathing remarks of Member of Parliament, Mahua Moitra on judiciary and the current government. She started of the speech by invoking her “garb of Parliamentary Privilege”. As per the definition given by Sir Thomas Erskine May, Parliamentary Privilege refers to the
“The sum of the peculiar rights enjoyed by each house collectively is a constituent part of the High Court of Parliament, and by members of each house of parliament individually, without which they cannot discharge their functions, and which exceed those possessed by other bodies or individuals.”
Article 105 and Article 194 of the Indian Constitution deals with powers, immunities and privileges enjoyed by the members of the Parliament. These privileges includes the freedom of speech in the Parliament as well as the immunity from any action on anything said or done by him in Parliament or in committee thereof. They also include immunity to a member from proceedings in any court in respect of the publication in any report, paper, votes or proceedings. The House has the power of contempt with respect to any violation to the same.
In this article, I shall delve into extent of the parliamentary privilege and whether the immunities mentioned above shall be competing with judicial review. In the first section of this paper I shall delve into jurisprudential analysis of legal rights and privilege: with reference to Hohfeldian analysis of rights. In the second part of the paper I shall make a comparison of parliamentary privilege with respect to the same followed in U.K and Australia. The most important question to be analyses is whether the immunities provided under Article 105 and Art 194 is contrary to the principle of judicial review or do they work simultaneously?. In this section I shall look into whether parliamentary privilege mentioned in Indian constitution is against the concept of judicial review. In the final section I shall look into whether the concept of parliamentary privilege is in need of repealing or codification? Since the very concept of parliamentary privilege is antithesis to rule of law, I shall examine whether the immunity require a codification.