Immunity for legislators taking Bribe

A seven-judge Bench of the Supreme Court on Monday declared that parliamentary privilege or immunity will not protect legislators who take bribes to vote or speak in Parliament or State Legislative Assemblies from criminal prosecution.

Background of the case

  • The case arose out of a plea filed by Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), who was accused of accepting a bribe to cast her vote for a certain candidate in the Rajya Sabha elections of 2012.
  • After these accusations came to the forefront, a complaint was filed before the Chief Election Commissioner of India to conduct a CBI probe in this case. Subsequently, the Central Bureau of Investigation (CBI) filed its chargesheet against Soren, accusing her of various offences under the IPC and the Prevention of Corruption Act, 1988, such as bribery, criminal conspiracy, and criminal misconduct by a public servant.
  • Seeking to quash the chargesheet and the criminal proceedings against her, Soren approached the Jharkhand HC, contending that she was protected by the immunity granted to her by Article 194(2). However, her plea was rejected by the Jharkhand High Court in 2014.
  • This led her to petition the apex court against the High Court’s order.

What was the 1998 ruling

  • The PV Narasimha Rao case refers to the 1993 JMM bribery case concerning Shibu Soren, who also happens to be the father-in-law of Sita Soren, the petitioner in the present case. In Shibu’s case, he, along with some of his party MPs, was accused of taking bribes to vote against the no-confidence motion against the then PV Narasimha Rao government.
  • Out of the five judges on the Bench in this case, two opined that protection under Article 105(2) or 194(2) and the immunity granted could not extend to cases concerning bribery for making a speech or vote in a particular manner in the House.
  • However, the majority view was that while the court was “acutely conscious of the seriousness of the offence”, the Bench’s “sense of indignation” should not lead to a narrow construction of the constitutional provisions, as this may result in hampering the guarantee of “parliamentary participation and debate”.
  • Thus, the top court in 1998 quashed the case against the JMM MPs, citing immunity under Article 105(2). Essentially, this five-judge bench ruling saved Soren from criminal prosecution

What are the provisions that grant legislators immunity from prosecution?

  • Broadly, Article 105 of the Constitution deals with the “powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof”.
  • Article 105(2) states, “No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”
  • In a nutshell, this provision exempts MPs from any legal action for any statement made or act done in the course of their duties. For example, a defamation suit cannot be filed for a statement made in the House.
  • Additionally, this immunity extends to certain non-members, like the Attorney General of India or a Minister who may not be a member but speaks in the House. In cases where a member oversteps or exceeds the contours of admissible free speech, the Speaker of the House will deal with it, as opposed to the court.
  • Meanwhile, Article 194(2) extends this immunity to MLAs and states, “No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings.”

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.
  • 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. 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.
  • 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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