The story so far: In a landmark judgment, the Supreme Court on Monday ruled that Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) cannot claim any immunity from prosecution for accepting bribes to cast a vote or make a speech in the House in a particular fashion. Article 105(2) of the Indian Constitution confers on MPs immunity from prosecution in respect of anything said or any vote given in Parliament or on any parliamentary committee. Similarly, Article 194(2) grants protection to MLAs.
A seven-judge Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud unanimously overruled its 1998 judgment in P.V Narasimha Rao v. State and opened the doors for law enforcement agencies to initiate prosecution against legislators in bribery cases under the Prevention of Corruption Act, 1988 (Act).
What was the case?
Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), was accused of accepting a bribe to cast her vote in favour of a certain candidate in the Rajya Sabha elections of 2012. Soon, the Central Bureau of Investigation (CBI) filed a chargesheet against her. In 2014, the Jharkhand High Court dismissed Ms. Soren’s plea seeking quashing of the criminal proceedings against her. In the plea, she had claimed she enjoyed legal immunity under Article 194(2). The dismissal in High Court led to an appeal being filed in the Supreme Court.
On September 23, 2014, a two-judge Bench referred the matter to a three-judge Bench. In March 2019, the three-judge headed by then CJI Ranjan Gogoi noted that the decision in P.V. Narasimha Rao dealt directly with the case. Considering that the case had been decided by a narrow margin (a 3:2 split among the five judges), it was referred to a larger bench underscoring that the issue was “substantial and of general public importance”.
Eventually, on September 20, 2023, a five-judge Bench headed by CJI Chandrachud doubted the correctness of the majority view in P.V. Narasimha and accordingly referred the matter to a seven-judge Bench. While recognising that it is an “important issue that concerns our polity”, the bench added that the object of parliamentary privileges is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land.
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What was the 1998 ruling that was being reconsidered?
The P.V. Narasimha Rao ruling involves the 1993 JMM bribery case against JMM chief and former Union Minister Shibu Soren, the father-in-law of Sita Soren, the petitioner in the present case. Mr. Soren, along with some of his party members, were accused of taking bribes to vote against the no-confidence motion against the then P.V. Narasimha Rao government.
Two of the judges on that Constitution Bench opined that the immunity granted under Articles 105(2) or 194(2) could not be extended to cases concerning bribery allegations for making a speech or voting in a particular manner in the House. On the other hand, the majority of the judges observed that although they were “acutely conscious of the seriousness of the offence,” such a “sense of indignation” should not lead to a narrow construction of the constitutional provisions, as this may result in the impairment of the guarantee of “parliamentary participation and debate”.
What did the top court rule?
Here are the key takeaways from the verdict.
No violation of the doctrine of stare decisis
During the proceedings, the petitioners raised a preliminary objection that overruling the long-settled law in P.V. Narasimha Rao is impermissible owing to the doctrine of stare decisis — a legal principle that obligates judges to adhere to prior verdicts while ruling on a similar case. However, such contention was dismissed by observing that the doctrine is not an “inflexible rule of law” and that a larger bench is well within its limits to reconsider a prior decision in appropriate cases.
“The judgment of the majority in P.V. Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered,” the verdict authored by CJI Chandrachud reasoned.
Legislative privileges have to conform with constitutional parameters
Tracing the history of parliamentary privileges in India, the Court said that unlike the House of Commons in the United Kingdom, India does not have ‘ancient and undoubted’ rights vested after a struggle between the Parliament and the King. Instead, such rights in India have always flown from a statute, which after independence transitioned to a constitutional privilege. Thus, whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review
Constitutional immunity from bribery charges does not fulfill “two-fold test”
While elaborating upon the purpose of Articles 105 and 194, the Chief Justice pointed out that such privileges are guaranteed to sustain an environment in which debate and deliberation can take place within the legislature. However, such a purpose is destroyed when a member is induced to vote or speak in a certain manner following an act of bribery.
He also highlighted that the assertion of any such privilege will be governed by a two-fold test — first, the privilege claimed has to be tethered to the collective functioning of the House and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator. Accordingly, it was held that constitutional immunity from prosecution on a charge of bribery in connection with a vote or speech in the legislature fails to fulfill such a test.
Bribery not immune just because it is not essential to the way a vote is cast
Clause (2) of Article 105 has two limbs. The first prescribes that a member of Parliament shall not be liable before any court in respect of “anything said or any vote given” by them in Parliament or any committee thereof. The second limb prescribes that no person shall be liable before any court “in respect of” the publication by or under the authority of either House of Parliament of any report, paper, vote or proceedings.
In P.V. Narasimha Rao, the Court observed that the expression “in respect of” in Article 105(2) must receive a “broad meaning” to protect MPs from any proceedings in a court of law that relate to, concern or have a connection or nexus with anything said or a vote given by him in the Parliament. It therefore concluded that a bribe given to purchase the vote of an MP was immune from prosecution under this provision.
However, in Monday’s ruling, the Chief Justice reasoned that the expressions “anything” and “any” must be read in the context of the accompanying expressions in Articles 105(2) and 194(2). Thus, the words “in respect of” means ‘arising out of’ or ‘bearing a clear relation to’ and cannot be interpreted to mean anything which may have even a remote connection with the speech or vote given.
“Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee,” the verdict further elucidates.
Offence of bribery complete the moment illegal gratification is taken
The Court emphasised that the offence of bribery is complete at the point in time when the legislator accepts the bribe, whether or not it is followed up by voting or making a speech in the manner wanted by the giver of the bribe. Equally, the place where the bribe was offered or received did not matter.
The verdict further asserted that the first explanation to Section 7 of the Act strengthens such an interpretation since it expressly states that the “obtaining, accepting, or attempting” to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper.
Importantly, it was pointed out that the decision in P.V. Narasimha Rao results in a paradoxical outcome — a legislator is conferred immunity when they accept a bribe and follow through by voting in the agreed direction. However, if a legislator agrees to accept a bribe but eventually decides to vote independently, they will be prosecuted.
Courts and the House can exercise parallel jurisdictions
The petitioners argued that the exercise of the Court’s jurisdiction is unwarranted since corruption charges against a parliamentarian are treated as a breach of privilege by the House resulting in expulsion or punishment. Dismissing such an argument, the verdict pointed out that the Court’s jurisdiction to prosecute a criminal offence and the authority of the House to take action for a breach of discipline operate in distinct spheres. Thus, judicial proceedings cannot be excluded merely because bribery charges can also be treated by the House as contempt or a breach of its privilege.
“The potential of misuse against individual members of the legislature is neither enhanced nor diminished by recognizing the jurisdiction of the Court to prosecute a member of the legislature who is alleged to have indulged in an act of bribery,” it reasoned.
It further highlighted that while proceedings in the House are conducted to restore its dignity, a criminal trial emanates from the power of the state to prosecute offenders who violate the law of the land and is governed by procedural safeguards, rules of evidence and the principles of natural justice.
Corruption by legislators erodes the foundation of democracy
The verdict underscores that when a legislator is induced to vote in a certain way not because of their belief or position on an issue but because of a monetary endorsement, it erodes probity in public life.
“Corruption and bribery of members of the legislature erode the foundation of Indian Parliamentary democracy. It is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive and representative democracy”, the Chief Justice highlighted.
Legislative privileges apply equally to Rajya Sabha elections
The Court also clarified that the principles enunciated by the verdict regarding legislative privileges will apply equally to elections to the Rajya Sabha and to appoint the President and Vice-President of the country. Accordingly, it overruled the observations in Kuldip Nayar v. Union of India (2006), which held that elections to the Rajya Sabha are not proceedings of the legislature but a mere exercise of franchise and therefore fall outside the ambit of parliamentary privileges under Article 194.
“The court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution...it is clarified that voting for elections to the Rajya Sabha falls within the ambit of Article 194(2). On all other counts, the decision of the Constitution bench in Kuldip Nayar (supra) remains good law,” the verdict noted.
It also pointed out that immunity guaranteed to legislators has been colloquially called a “parliamentary privilege” and not “legislative privilege” for a reason. Thus, it cannot be restricted to only law-making on the floor of the House but extends to other powers and responsibilities of elected members, which take place in the legislature or Parliament, and even when the House is not in session.
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