Supreme Court: The 7-Judge Constitution Bench comprising of Dr. DY Chandrachud, CJI*, AS Bopanna, MM Sundresh, Pamidighantam Sri Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra, JJ. overturned the 5-Judge Bench 1998 verdict in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626, wherein it was established that the Member of Parliaments (‘MP’) and Member of Legislative Assemblies (‘MLA’) enjoyed immunity if they cast vote in the House after taking bribe for it.
Background
Article 105(2) and 194(2) of the Constitution
Article 105(2) of the Constitution of India grants immunity to MPs against prosecution in respect of anything said or any vote given by him in Parliament or any committee. Article 194(2) of the Constitution grants similar immunity to MLAs.
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
The majority of 5-Judge Constitution Bench held that the MPs who allegedly accepted bribe and voted against the no-confidence motion were entitled to immunity under Article 105(2) of Constitution. It said that “no member (of Parliament) is answerable in a court of law or any similar tribunal for what he has said in Parliament. This again is recognition of the fact that a member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension of speech or a substitute for speech and is given the protection that the spoken word has.”
Sita Soren v. Union of India, 2014 SCC OnLine Jhar 302
This case revolved around complaints of Horse-Trading during election of the Council of the States, and facts reflected that after receiving money, the said member did caste vote, but not in favour of the bribe giver. The Court relied on the majority view in P.V. Narasimha Rao (supra) to express that the act of receiving money had no nexus with the alleged conspiracy or the act of casting vote. The Court viewed that the petitioner’s act of receiving money pursuant to the conspiracy and agreement with bribe giver lacked nexus with the vote due to the fact that she did not cast vote in favour of the said person and will have no immunity as guaranteed under Article 194(2) of the Constitution.
Reference to 7-Judge Bench
While hearing an appeal against the High Court’s decision, the three-judge Bench of the Court said that the question that whether by virtue of Article 105(2) and 194(2) of the Constitution the MPs or MLAs can claim immunity from the prosecution on a criminal charge of bribery, was dealt by a 5-Judge Bench in P.V. Narasimha Rao (supra), hence, considering the wide ramification of the question, the doubts raised and the issue being a matter of public importance, the correctness of the P.V. Narasimha Rao was referred to a larger bench.
7-Judge Bench Decision
Reconsidering PV Narasimha Rao does not violate the principle of stare decisis
Referring to Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, (1974) 2 SCC 402 the Court said that the ability of the Court to reconsider its decisions is necessary for the organic development of law and the advancement of justice. Further, the Court said that if the Court is denuded of its power to reconsider its decisions, the development of constitutional jurisprudence would virtually come to a standstill. The Court also reiterated that the doctrine of stare decisis is not an inflexible rule of law, and it cannot result in perpetuating an error to the detriment of the general welfare of the public. The Court explained that its earlier decisions can be reviewed by the Court, if it believes that there is an error, or the effect of the decision would harm the interests of the public or if “it is inconsistent with the legal philosophy of the Constitution”. The Court stated that “the period of time over which the case has held the field is not of primary consequence”. Hence, the Court said that the majority judgment in PV Narasimha Rao (supra) deals with an important question of constitutional interpretation which has wide ramifications on public interest, probity in public life and the functioning of parliamentary democracy and as it contains several apparent errors inter alia in its interpretation of the text of Article 105; its conceptualization of the scope and purpose of parliamentary privilege and its approach to international jurisprudence all of which have resulted in a paradoxical outcome.
Parliamentary Privilege in India
The Court said that the clause (1) and (2) of the Article 105 of the Constitution guarantees freedom of speech in Parliament and this privilege of free speech is not only essential to the ability of Parliament and its members to carry out their duties, but it is also at the core of the function of a democratic legislative institution. Further, the Court discussed Clause (3), which allows the Parliament to enact a law on its privileges from time to time, however, the extent of these privileges in India must be within the confines of the Constitution. The role of the Courts in this scheme, is to determine whether the privilege claimed by the House of Parliament or Legislature in fact exists and whether they have been exercised correctly. The Court also reiterated that in the absence of legislation on privileges, the Parliament or Legislature may only claim such privilege which belonged to the House of Commons at the time of the commencement of the Constitution and that the House is not the sole judge to decide its own privilege.
The Court referred to Pandit M.S.M. Sharma v. Sri Krishna Sinha, 1958 SCC OnLine SC 11 wherein, it was held that “the privileges of the House of Parliament under Article 105(3) are those which belonged to the House of Commons in the UK at the commencement of the Constitution which would prevail over the fundamental rights guaranteed to citizens under Article 19(1)(a). However, if the Parliament were to enact a law codifying its privilege, then it may not step over the fundamental rights of citizens by virtue of Article 13 of the Constitution.”
Further, the Court added that the privileges enjoyed by members of the House are tied intrinsically to the functioning of the House collectively. The members of the House of Parliament or Legislature acting as constituents of the House may not claim any privilege or immunity unconnected with the working of the entire House.
Regarding the ‘necessity test’ to claim and exercise privilege, the Court referred to Amarinder Singh v. Punjab Vidhan Sabha, (2010) 6 SCC 113, wherein it was held that the test to scrutinise the exercise of privileges is whether they were necessary to safeguard the integrity of legislative functions and that privileges are not an end in themselves but must be exercised to ensure the effective exercise of legislative functions. Placing its reliance upon trajectory of precedents, the Court laid down that the assertion of a privilege by an individual member of Parliament or Legislature would be governed by a twofold test:
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The privilege claimed has to be tethered to the collective functioning of the House, and
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its necessity must bear a functional relationship to the discharge of the essential duties of a legislator.
Whether Parliamentary privileges attract immunity to a member of Parliament or of the Legislatures who engages in bribery in connection with their speech or vote?
Referring to a catena of Judgments, interpreting the phrase “in respect of” and “anything” under Article 105(2), the Court noted that the privilege of the House, its members and the Committees is neither contingent merely on location nor on the act in question and a speech made in Parliament or Legislature cannot be subjected to any proceedings before any Court. The Court noted that in P.V. Narasimha Rao (supra), the majority interpreted the phrase “in respect of” as having a broad meaning and referring to anything that bears a nexus or connection with the vote given or speech made, hence, concluding that a bribe given to purchase the vote of a member of Parliament was immune from prosecution under Article 105(2).
The Court refused to concur with the said majority opinion taken in P.V. Narasimha Rao (supra) and said that the phrase “in respect of” applies to the collective phrase “anything said or any vote given.” The words “in respect of” means arising out of or bearing a clear relation to. The Court added that this cannot be overbroad or be interpreted to mean anything which may have even a remote connection with the speech or vote given. Further, the Court elaborated that Articles 105 and 194 of the Constitution seek to create a fearless atmosphere in which debate, deliberations and exchange of ideas can take place within the Houses of Parliament and the state legislatures and for this exercise to be meaningful, members and persons who have a right to speak before the House or any committee must be free from fear or favour induced into them by a third party. The Court also added that when a member is induced to vote in a certain way not because of their belief or position on an issue but because of a bribe taken by the member, the ability to exercise the free will and conscience to enrich the functions of the House is taken away. The Court stated that the “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 Court held that bribery is not immune under Article 105(2), a member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote, which may bring indignity to the House of Parliament or Legislature and may also attract prosecution. However, the Court said that what it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or Legislature. Referring to the minority opinion in P.V. Narasimha Rao (supra), the Court held that Article 105(2) does not grant immunity against bribery to any person as the receipt of or agreement to receive illegal gratification is not “in respect of” the function of a member to speak or vote in the House. Thus, prosecution for bribery is not excluded from the jurisdiction of the criminal Court merely because it may also be treated by the House as contempt or a breach of its privilege.
At which stage does the offence of Bribery crystallizes?
The Court noted that the minority opinion in P.V. Narasimha Rao (supra), said that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The Court said that the offence of bribery is agnostic to the performance of the agreed action and crystallizes on the exchange of illegal gratification and it does not matter whether the vote is cast in the agreed direction or if the vote is cast at all. Thus, the Court stated that the offence of bribery is complete at the point in time when the legislator accepts the bribe.
[Sita Soren v. Union of India, 2024 SCC OnLine SC 229, Decided on: 04-03-2024]
*Judgment Authored by: CJI Dr. DY Chandrachud
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