A seven-judge constitution bench of the Supreme Court on 04.03.2024, unanimously ruled that a Member of Parliament [“MP”] and Member of Legislative Assembly [“MLA”] cannot claim immunity under Articles 105 and 194 of the Constitution of India [“the constitution”], from prosecution, on a charge of bribery in connection with a vote or speech made in the legislature. Doing so, the Supreme Court overruled the contrary ratio laid down by the constitution bench of the Supreme Court in 1998 in the matter of P.V. Narsimha Rao vs State (CBI/SPE) [“P.V. Narsimha Rao”].
Articles 105(2) and 194(2) of the constitution confers special privileges upon the MPs and MLAs, respectively, viz they are not liable to any proceedings in any court in respect of anything said or any vote given by them in Parliament or the Legislative Assembly. The above privilege granted by the constitution to the MPs and MLAs is grounded on the principle that a member of the house represents the collective will of the people who chose him to represent them in the house and in order to discharge his functions in furtherance of the interest of the people who chose him, it is essential for the member to work fearlessly by making speeches and casting votes in the house without the fear of being prosecuted for discharging the said functions inside the precincts of the house. The privileges enjoyed by the members under Articles 105 and 194 embody freedom of speech which is unlike the one enshrined in Article 19(1)(a) of the constitution which is subject to the rigors of Article 19(2). The freedom of speech exercised by the members inside the house is not circumscribed by Article 19(2) and voting is only an extension of the freedom of speech exercised by the Members.
Background and Ruling
The underlying jurisprudence of Articles 105 and 194 of the constitution emanated from a judgment rendered by a constitution bench of the Supreme Court in 1998 in the matter of P.V. Narsimha Rao. The case arose when a no confidence motion was moved in the Lok Sabha in 1993 against the Congress party headed by the then Prime Minister P.V. Narsimha Rao, which remained 14 members short of the majority government. However, the said government managed to defeat the no confidence motion by mustering the support of 265 members as against 251. A complaint was later filed before the CBI alleging that several MPs including P.V. Narsimha Rao, bribed MPs in order to gain their votes in defeating the no confidence motion. A special judge took cognizance of the offences of bribery and criminal conspiracies levelled against the MPs and when the High Court dismissed the petitions of the said MPs for quashing the criminal proceedings, the appeals by way of special leave were referred to constitution bench of Supreme Court. The MPs sought immunity from prosecution by virtue of Article 105, stating that the act of bribery was in respect of vote given in the Parliament and thus not liable to be prosecuted.
The ruling of the court hinged upon the interpretation of words “in respect of” preceding the words “anything said, or any vote given by him in Parliament” in Article 105. Notably the immunity showered upon the Members operates only within the four walls of the house i.e. when the members are exercising their functions of making a speech or casting a vote in Parliament. However, the majority opinion (3:2) opined that the phrase “in respect of” must be accorded a wider interpretation so as to take within its sweep the acts undertaken antecedent to making a speech or casting a vote in the house. As a result, the Supreme Court held that the bribe takers who voted against no confidence motion in pursuance of taking a bribe for the same, are entitled to immunity conferred by Article 105(2). However, one of the accused MP, who despite taking the bribe, abstained from voting, was not extended the immunity under Article 105(2) by the Supreme Court and was held liable to be prosecuted. Therefore, the Supreme Court linked the offence of bribery to the performance of the Act for which it was taken i.e. if a MP has taken bribe and in furtherance of it has discharged his functions of making a speech or casting a vote then he would be immuned from prosecution, however, if a MP despite taking bribe does not perform his function of making speech or casting a vote in furtherance of the bribe, then immunity of Article105 would not be extended to him.
The above ruling of the Supreme Court made legally permissible what is morally impermissible, rendering the very the spirit of democracy and the collective will of the people, nugatory so long the bribes taken by the members meets their desired end results. In essence, the above ruling would lead to an anomalous situation in a court of law, in a fact situation wherein an MP who has been accused of taking a bribe, can link the act of taking a bribe to any speech made or vote given in the parliament and escape the charge of bribery. The court would witness a defendant MP vehemently prove his guilt of taking a bribe to make a speech or cast a vote in parliament, and if proven, the court would have to relieve him of the charge.
The correctness of the above ratio was doubted by the Supreme Court in several judgments until an opportunity presented itself in 2023 in the matter of Sita Soren vs Union of India [“Sita Soren”] to make amends. The Supreme Court was dealing with the facts of a case wherein the Appellant Sita Soren, a Member of Legislative Assembly of Jharkhand was accused of taking a bribe from an independent candidate for casting her vote in his favor for election to Rajya Sabha. However, despite taking the bribe, she did not cast her vote in the candidate’s favor and voted in favor of a candidate of her own party. When criminal proceedings were instituted against her she sought immunity under Article 194(2). However, the High Court placed reliance upon the decision in P.V. Narsimha Rao and held that since she did not cast her vote in favor of the candidate from whom she received the bribe, the objective of the bribe was not achieved, therefore, she is not entitled to immunity under Article 194(2) and liable to be prosecuted. The above decision of High Court was challenged before Supreme Court which formed a constitution bench of seven judges, doubting the correctness of the decision in P.V. Narsimha Rao. The Supreme Court restricted the scope of appeal only to the correctness of decision in P.V. Narsimha Rao and not the merits of Appeal.
What went amiss by the majority opinion in P.V. Narsimha Rao and duly noted and rectified by the Supreme Court in Sita Soren was the issue viz. when the offence of bribery crystallizes? The majority opinion in P.V. Narsimha Rao linked the offence of bribery with the performance of the Act for which the bribe was taken. However, in Sita Soren, the Supreme Court referred to Section 7 of the Prevention of Corruption Act, 1988 and observed that the mere act of obtaining, accepting, or attempting bribery is sufficient to complete the offence and it is not necessary that the act for which the bribe is given be actually performed. The Supreme Court also narrowed down the construction of “in respect of” preceding the words “anything said or any vote given” and held that the said phrase ought to be construed as “arising out of” any speech made or any vote given in the House. The Supreme Court categorically stated that “in respect of” cannot be accorded a wide interpretation allowing it to take within its ambit anything which may have even a remote connection with the speech or vote given. Therefore, the Supreme Court completely delinked the offence of bribery with the performance of the Act for which the bribe was taken. Observing in above terms, the constitution bench of Supreme Court unanimously held as follows-
i. An individual MP or MLA asserting his privilege must pass the two-fold test in order to qualify for the privilege viz.
- The privilege claimed is tethered to the healthy and essential functioning of the house, i.e. it is in furtherance of any speech made or vote given in the house.
- The privilege claimed is necessary to the orderly functioning of the house.
ii. The burden of satisfying that a privilege exists and that it is necessary for the house to collectively discharge its function lies with the person claiming the privilege.
iii. A speech made or vote given in parliament or Legislature cannot be subjected to any proceedings before any court. However, the privilege is not absolute. Clause 2 of Articles 105 and 194 grants immunity “in respect of anything said or any vote given”. The extent of this immunity is to be tested on the anvil of the above two tests.
iv. The offence of bribery is independent of the performance of the agreed action and crystallizes on the exchange of illegal gratification. A member engaging in bribery commits a crime which is unrelated to their ability to make a speech or vote and this action brings indignity to the House of Parliament or Legislature which cannot be allowed to pass or safeguarded by extending immunity enshrined in Articles 105 and 194.
v. The court also answered a hypothetical question which arose during the course of hearing i.e. what happens in a situation when bribery is accepted within the precincts of legislature? Would that make the offence fall within the ambit of parliamentary privilege as it has taken place inside the four walls of legislature? The Court held that when it has already observed that the offence of bribery is independent of the act of speech or vote given and crystalizes when bribe is accepted by the member, therefore it automatically pushes the offence outside the ambit of Articles 105 and 194.
vi. Lastly, the Attorney General submitted before the Court that the decision in P.V. Narsimha is inapplicable to the facts of the case before the Court as P.V. Narsimha pertained to voting on a no confidence motion while in the present case voting pertains to filling vacant seats in Rajya Sabha and such voting do not form part of legislative proceedings of the house. The Supreme Court repelled the aforesaid contention as follows-
- Court relied upon Article 80 of the constitution and observed that the power to vote for the elected members of the Rajya Sabha is solely entrusted to the elected members of the Legislative Assemblies of the States and constitutes an integral part of their powers as MLAs.
- Court drew distinction between usage of the words “Legislature” and “House of Legislature” appearing at appropriate places in Article 194(2) and observed that “House of Legislature” refers to juridical body, which is summoned by the Governor pursuant to Article 174. The term “Legislature” on the other hand refers to wider concept under Article 168 comprising the Governor and the House of Legislature. It functions indefinitely and continues to exist even when the Governor has not summoned the House.
- Voting to the elections in Rajya Sabha, although may take place when the house is not in session, however it forms an integral part of powers of the MLAs. The vote for such election is given in the “Legislature” which is sufficient to invoke the protection of the Article 194(2).
Conclusion
The MPs and MLAs elected by the citizens of the country represent the collective will of the people. Articles 105 and 194 of the constitution facilitates the members in discharging their functions fearlessly by protecting them from being prosecuted for any speech made or vote given within the four walls of the House. However, when an individual MP or MLA takes a bribe to manipulate the proceedings of the house, it not only violates the collective will of the people who chose him but also erodes 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 decision of Supreme Court in Sita Soren has reinstated the faith of the people in parliamentary democracy, by plugging in loopholes left by the decision in P.V. Narsimha, by making the offence of bribery independent of the actual performance of the act for which the bribe was taken and narrowing down the scope of Article 105 and 194. Now, an individual MP or MLA cannot escape the charge of bribery by linking bribery with a speech made or vote given in the House, since the Supreme Court has categorically held that the very offence of bribery itself, whether taken inside the House or outside or whether in relation to any speech or vote or otherwise, is an independent offence agnostic to the performance of the act for which the bribe was taken.
