The absence of legal codification of parliamentary privileges can be attributed to several reasons:

1. Historical evolution: Parliamentary privileges have their roots in medieval England and have evolved over centuries. They were initially granted to protect members from prosecution by the monarchy for raising issues of public concern and evolved to ensure the independence and functioning of the legislature. Due to their historical development, these privileges were never codified into law.

2. Flexibility and adaptability: Parliamentary privileges are dynamic and need to be flexible to meet the evolving needs of the legislature. By not codifying them, the privileges can be interpreted and applied as per the changing circumstances. This flexibility allows privileges to be adapted to the requirements of a modern democratic system.

3. Separation of powers: Codifying parliamentary privileges would require the interference of the judiciary or the executive, which would infringe upon the principle of separation of powers. It is important to maintain the autonomy and independence of the legislative branch, and codifying privileges could jeopardize this balance.

4. Political considerations: The lack of codification allows parliamentarians to exercise a wide range of privileges, which can be advantageous for political purposes. Politicians may be hesitant to codify privileges as it could lead to a reduction in those privileges or the imposition of stricter regulations.

To address the problem of un-codified and un-enumerated privileges, the following steps can be taken:

1. Framing a comprehensive legislation: Parliament can pass a legislation that clearly defines and codifies the privileges and immunities of its members, ensuring they are in line with democratic principles and constitutional rights.

2. Judicial interpretation: In the absence of a codified law, the judiciary should play an active role in interpreting and defining the scope of parliamentary privileges. Judicial rulings can help establish a legal framework that balances the privileges with the rights of individuals and the principles of democracy.

3. Parliamentary committees or commissions: Establishing a parliamentary committee or commission dedicated to examining and recommending reforms to parliamentary privileges can help in addressing any abuses or inconsistencies. This would bring transparency and accountability to the process.

4. Public participation: The issue of parliamentary privileges should involve public discourse and debate. Public input can help identify areas of concern and ensure that the privileges granted to the legislature are consistent with the aspirations and expectations of the citizens.

By taking these steps, the problem of un-codified and un-enumerated privileges can be addressed, ensuring that the exercise of parliamentary privileges is consistent with democratic principles, constitutional rights, and the overall functioning of a modern legislature.

The Uncharted Waters of Parliamentary Privilege: A Case for Codification

Article 105 of the Indian Constitution, while establishing the fundamental principle of parliamentary privilege, offers a tantalizingly vague definition: "The powers, privileges, and immunities of Parliament, and of the members and committees thereof, shall be such as may from time to time be defined by Parliament by law". This inherent ambiguity has led to a complex, often opaque, system of privileges that remain largely uncodified and unenumerated.

Reasons for the Absence of Codification:

• Historical Legacy: The concept of parliamentary privilege has deep historical roots, evolving from the struggle against monarchical control. The British Parliament, from which our system is derived, never fully codified its privileges, relying instead on case law and precedent. This tradition has been largely inherited by India.
• Fear of Limiting Power: Some argue that codifying privileges would limit the power of Parliament, potentially jeopardizing its independence and ability to function effectively. This fear stems from a concern that explicit limitations might hinder the free exercise of parliamentary functions, particularly in scrutinizing the executive.
• Difficulty in Defining: The inherent nature of parliamentary privileges makes it difficult to define them precisely. These privileges are not static, but rather evolve according to the changing needs and challenges of the parliamentary system. Codification might create a rigid framework that cannot adapt to new circumstances.
• Political Considerations: The issue of parliamentary privileges is often intertwined with political considerations. Codifying these privileges could lead to contentious debates and potentially affect the delicate balance of power within the legislature.

Addressing the Problem:

• Gradual Codification: Rather than attempting a complete codification of all parliamentary privileges, a phased approach could be adopted. Starting with the most fundamental and universally accepted privileges, a clear and concise legal framework could be developed, gradually expanding to cover more complex aspects.
• Judicial Review: The judiciary could play a vital role in ensuring that parliamentary privileges are not abused. Establishing clear guidelines for judicial review, while acknowledging the need for parliamentary autonomy, could provide a mechanism for balancing power and upholding the rule of law.
• Public Awareness and Transparency: Increasing public understanding of parliamentary privileges and their rationale is crucial. Transparent procedures for invoking and exercising these privileges, along with clear mechanisms for accountability, could foster public trust and prevent potential abuses.
• Parliamentary Debate and Reform: Engaging in open and informed debate within Parliament itself is essential. A comprehensive review of existing privileges, with input from legal experts, constitutional scholars, and civil society, could lead to a more balanced and transparent system.

Ultimately, striking the right balance between ensuring parliamentary autonomy and safeguarding individual rights and freedoms is crucial. Codification, while challenging, presents a potential solution to the lack of clarity and transparency surrounding parliamentary privileges, fostering a more accountable and responsible parliamentary system.

The 'Powers, Privileges, and Immunities of Parliament and its Members' are enshrined in Article 105 of the Indian Constitution, which provides for certain privileges and immunities to parliamentarians and the Parliament as an institution. However, the article leaves room for a large number of un-codified and un-enumerated privileges to continue, which has led to concerns about the lack of legal codification of parliamentary privileges.

Reasons for the absence of legal codification of parliamentary privileges:

1. Historical reasons: The concept of parliamentary privileges has its roots in British parliamentary history, where privileges were considered part of the traditional rights and customs of the House of Commons. The Indian Constitution inherited this tradition, and the framers may not have seen the need to codify these privileges in detail.
2. Flexibility and adaptability: Un-codified privileges allow Parliament to respond to new situations and challenges without being constrained by rigid legal provisions. This flexibility is seen as essential for the effective functioning of Parliament.
3. Fear of limiting parliamentary sovereignty: Codifying parliamentary privileges might be seen as limiting the sovereign authority of Parliament, which is considered essential for its effective functioning.
4. Difficulty in defining privileges: It is challenging to define and enumerate all possible privileges that Parliament may require, as they can vary depending on the circumstances.
5. Lack of parliamentary time and attention: With the pressures of lawmaking and governance, Parliament may not have devoted sufficient time and attention to codifying parliamentary privileges.

Problems arising from the absence of legal codification:

1. Uncertainty and ambiguity: The lack of clear legal provisions creates uncertainty and ambiguity, leading to disputes and controversies.
2. Arbitrariness and abuse of power: The vagueness of parliamentary privileges can lead to arbitrary decisions and abuse of power by parliamentarians or the Speaker of the House.
3. Lack of transparency and accountability: Uncodified privileges can make it difficult to hold parliamentarians accountable for their actions, leading to a lack of transparency and accountability.

Addressing the problem:

1. Codification of privileges: Parliament should establish a committee to examine and codify the privileges of parliamentarians and the institution of Parliament. This would provide clarity and certainty about the scope of parliamentary privileges.
2. Guidelines and regulations: The Speaker of the House or the Parliamentary Committee on Privileges should establish guidelines and regulations to govern the exercise of parliamentary privileges, ensuring transparency and accountability.
3. Judicial review: The judiciary should be empowered to review and interpret parliamentary privileges, providing an independent check on their exercise.
4. Parliamentary oversight: Parliament should establish a system of internal oversight, such as a Parliamentary Ombudsman, to monitor and ensure the responsible exercise of parliamentary privileges.
5. Public education and awareness: Parliament should take steps to educate citizens about the nature and scope of parliamentary privileges, promoting transparency and understanding.

In conclusion, the absence of legal codification of parliamentary privileges poses challenges to the functioning of Parliament and the exercise of parliamentary power. By codifying privileges, establishing guidelines and regulations, and introducing judicial review and parliamentary oversight, the problems arising from the lack of codification can be addressed, leading to a more transparent, accountable, and effective Parliament.