Can MPs/MLAs Taking Bribe For Vote/Speech In Legislature Claim Immunity? Supreme Court 7-Judge Bench Reserves Verdict

A seven-judge bench of Chief Justice of India DY Chandrachud, and Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar, and Manoj Misra is considering the correctness of the 1998 PV Narasimha Rao judgment that was referred last month to a larger bench of seven judges.

In PV Narasimha, by a 3:2 majority, a five-judge bench of the apex court held that members of the parliament or state legislatures were immune from prosecution in bribery cases revolving around any speech or vote in the house, in the enjoyment of the parliamentary privilege conferred by Articles 105(2) and 194(2) of the Constitution. The majority, led by Justice SP Bharucha, however, clarified that the parliamentary privilege could only be claimed if the legislator in question upheld their end of the bargain for which they received they received a bribe. This verdict was doubted in an appeal by Jharkhand Mukti Morcha leader Sita Soren who was accused of accepting a bribe for a 2012 Rajya Sabha vote. She claimed immunity under Article 194(2) of the Constitution, but the Jharkhand High Court dismissed her plea, leading to her appeal in the Supreme Court.

After two days of hearing, the seven-judge constitution bench led by Chief Justice Chandrachud reserved its judgment today on whether this significant 25-year-old ruling on legislative immunity and bribery ought to be reconsidered.

Immunity can only be claimed in discharge of essential legislative function: Gopal Sankaranarayanan

Building on his remarks yesterday, Senior Advocate Gopal Sankaranarayanan reiterated his objection against the nexus test proposed in the majority judgment of PV Narasimha. Instead, he suggested that the consequence or the effect of the act be examined. In response to Justice Narasimha’s reluctance over the idea of reformulating the scope and extent of parliamentary immunity, Sankaranarayanan explained why the norms for being entitled to the protective cloak of Articles 105(2) and 194(2) needed to be laid down –

“One counter-argument is the legislators being targeted by a powerful executive. So when balancing this consideration, you have to be careful of ensuring that the legislators get the immunity that the constitution intended. The cloak cannot be made so small that it disappears. If we are doing that, we have to have some kind of formulation or test on the basis of which we determine the immunity that is deserved.”

The senior counsel also urged the court to create a distinction between different activities in the parliament or state legislature, pointing to how non-legislative activities were contrasted against legislative activities by the Supreme Court in K Ajith (2021). In support of the ‘essential functions’ test, Sankaranarayanan also referred to the three categories laid down by the United States Supreme Court, namely, manifestly legislative act, non-legislative act, and illegitimate activities –

“In Narasimha Rao, even illegitimate activities are said to receive cloak of protection…Whether an act is essential for undertaking legislative functions is a test I would commend. It is a better test than the proximity of time or to see if the vote had been cast and the speech delivered. The question is only whether an act was part of the essential legislative function. If yes, the legislator will enjoy immunity; otherwise, it cannot be claimed.”

Sankaranarayanan also told the bench that the question of claiming immunity would not arise unless there was a crime. The test to determine whether the protective cover of the constitutional provisions could be extended to a legislator would depend on the nature of the crime. The crime, the senior counsel said, is one that would “attend a speech or vote given or not given in the parliament as a consequence of extraneous considerations”. This question would not arise if an act is part of the normal legislative process, he added, referring to parliamentarian Ramesh Bidhuri’s recent speech in Lok Sabha in which he used slurs against his Muslim colleague, Danish Ali. The senior counsel explained –

“Two weeks ago, a gentleman hurled expletives in Lok Sabha. I do not know if the phrase ‘parliamentary language’ can be used anymore after this. It was ensured that the words were struck off from the records, but it’s my view that it was a crime having many hues of hate speech and attracting provisions of the Indian Penal Code. But whether we like it or not, or find it palatable, it is something he said during a debate and on a subject. It would not be fair for us to say that the gentleman, however reprehensible his conduct may have been, did not have parliamentary privilege when he said that.”

In response to Chief Justice Chandrachud’s question on whether the speech was amenable to an action of criminal defamation, Sankaranarayanan said, “In my view, no. Our hands are tied. Obviously, we find it repulsive. The court’s hands are also tied because that is the deference we give to the parliamentary process.”

Sankaranarayanan also cautioned against a judicial examination of whether particular words or phrases were germane to the speech, saying that the court would be treading on dangerous territory. Justice Narasimha pointed out that this would have to be analysed depending on the circumstances of each case. Chief Justice Chandrachud, however, appeared to agree with the senior counsel’s submission, and he said –

“Now can the court say that these offending words a legislator used were unnecessary for the speech? This is not a part of the court’s obligations nor duty.”

Sankaranarayanan replied, “We expect responsible parliament and parliamentarians to take more stringent action.”

Interpretation of provisions should reduce criminalisation in politics and criminality among political classes: Vijay Hansaria

Echoing the submissions of Sankaranarayanan, Senior Advocate Vijay Hansaria told the seven-judge bench that the correct test was the ‘integral part’ test proposed in the minority judgment by Justice SC Agarwal in PV Narasimha Rao, and not the nexus test propounded by Justice SP Bharucha in the majority view. If the nexus theory is accepted, the senior counsel warned, parliamentary immunity could be available for offences other than those under the Prevention of Corruption Act, 1988, such as the Unlawful Activities (Prevention) Act, 1967, and the Prevention of Money Laundering Act, 2002. According to him, the nexus theory was also sufficient to exclude persons with criminal antecedents or pending criminal cases against them from liability, in violation of our constitutional ethos and morality.

In this context, Hansaria voiced his concerns about the increasing criminalisation of politics, urging the court to interpret Articles 105(2) and 194(2) in a manner that would decrease such criminalisation and prevent “criminality among politicians or the political class from flourishing”. Pointing out that there were more criminal cases pending against legislators than the number of sitting parliamentarians or assembly members, Hansaria argued that the expulsion from the legislature was not a suitable alternative to criminal proceedings –

“There are more criminal cases pending than the number of parliamentarians or legislators. We have a total of 4,778 lawmakers – MPs and MLAs of both houses – and we have more than 5,000 cases against politicians pending in court, today. In December 2018, there were 4,122 pending cases – 1,675 were against MPs and 2,324 against MLAs. Out of these cases, there were 430 cases of the death penalty or life imprisonment against 180 sitting legislators and 250 against former legislators. In December 2021, after this court passed directions for expedited trials in these cases, the pendency increased to 4,984, out of which 1,899 were pending for more than five years. In November of last year, the number of cases went up to 5175, out of which 2,166, or 40 percent cases were five years old. My learned friend gave five examples since 1947 where parliamentarians have been expelled for some time. After that, they come back as a member. But, if they are convicted, they cannot come back till six years of release. Those five instances…we expected much more. Expulsion is not a satisfactory solution.”

Justice Narasimha, in response to the senior counsel’s contention, reasoned that legislators with such pending criminal cases were not claiming Article 105(2) privilege to insulate themselves from criminal proceedings. Hansaria nevertheless insisted that the court ought to take into account these alarming figures when interpreting the immunity-granting provisions of the Constitution.

Only speech or function in relation to manifold legislative functions would be protected: Attorney-General

Attorney-General R Venkataramani categorically told the bench that no responsible government or public authority could take the stand that anything that is clearly proscribed by a statute, would have a refuge under Articles 105(2) and 194(2). But at the same time, the top law officer reminded the court that there were other considerations to be taken into account before it laid down an inflexible norm finding anything that happened outside of parliament having a tinge or shade of criminal activity questionable. When dealing with what he described as an ‘ancient principle of law’ conferring certain protection to elected representatives, the court would have to strike a balance between their freedom to perform legislative functions without being impaired or exposed to ‘undue exertions and coercion’ and the prevention of the dilution of the trust in their office and its importance.

“I do not propose to go into the question of minority versus majority view,” the attorney-general stated, at the outset. While he refused to accept the nexus test as a ‘safe guide’, AG Venkataramani also proposed the more extreme view of the minority of judges to be moderated –

“The nexus test may have the effect of exclusion of criminal or civil liability, regardless of the unlawfulness of conduct, so long as there is connection with a vote or a speech given in the parliament. This leads to disregarding the nature of the antecedent conduct. Therefore, the nexus test may not be a safe guide. At the same time, the possibility of hostile or adverse action being taken may also be kept in mind. The view of the minority that an act preceding a vote or a speech may not at all qualify for protection regardless of its connection with the said vote or speech also needs to be moderated.”

Steering clear of both the nexus and the essential function test, the attorney-general therefore suggested a third test, as Chief Justice Chandrachud later remarked. The law officer said that the plain meaning of the articles indicated that any act which is otherwise unlawful will not ordinarily receive protection against liabilities. It is only a speech or a vote in relation to the manifold functions of the legislature that would stand protected. “Under this test, which is a functional test, immunity would extend to a speech or a vote necessary to discharge the legislative duties without fear of consequences,” the chief justice observed.

Venkataramani – in the interest of prudence and not sacrificing ethical and moral standards in the political field – further proposed an in-house committee in respective legislatures to be a ‘speech and vote watch’, whose recommendations can be the basis of all liabilities, drawing a parallel with the Tenth Schedule of the Constitution.

Having said all these, the attorney-general then argued that the only question that arose in Soren’s appeal was whether PV Narasimha Rao applied, i.e., whether a vote to elect a member to the Rajya Sabha in the lobby of the state legislature amounted to a legislative vote within the meaning of Article 194(2). Contending that the Rajya Sabha elections, being an independent process governed by a special set of rules, and as such, not part of the work, business, or function of the legislature, the law officer asserted that the 1998 ruling currently being reconsidered would not apply. He also opposed an attempt made by Senior Advocate Raju Ramachandran to distinguish Kuldip Nayar and other cases cited by the respondents. The statements of law that the Rajya Sabha, president, or vice-president elections are not speech and vote within the meaning of these articles would hold good regardless of the context in which these statements were made in these pronouncements, AG Venkataramani told the bench.

Court may declare Narasimha Rao per incuriam on grounds of not accounting for statutory scheme instead of declaring it as bad law: Solicitor-General

Solicitor-General Tushar Mehta proposed that the issue be examined through the lens of the site of the completion of the offence of bribery. If the offence of bribery is completed outside the house, then the court does not need to go into the question of immunity, Mehta said.

Chief Justice Chandrachud, however, objected to this, saying that the location where the offence is completed and whether it preceded or succeeded the intended speech or vote, being nothing but ‘fortuitous circumstances’, should not matter. He explained with an illustration –

“Suppose an agreement to pay a bribe is arrived at within the house itself. The offer and the acceptance are completed within the house, for instance, when some third party is visiting for a committee meeting. The place should make no difference to the legal position. Of course, this is on a very strong footing that bribery is complete outside the house.”

There may be a situation where not only the offer and the acceptance of a bribe, but also the transaction itself takes place in the house of the legislature, Solicitor-General Mehta hypothesised, before cautioning the court against interpreting the provisions on the basis of extraordinary circumstances or by being guided by extreme examples.

Next, the solicitor-general argued that the performance of their end of a bargain was irrelevant when determining the question of the immunity a legislator was entitled to. In support, he pointed out that Section 7 of the Prevention of Corruption Act relating to the offence of a public servant being bribed was amended years after the PV Narasimha Rao judgment, to, inter alia, include an explanation that stated: “The obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant, is not or has not been improper.” The law officer explained -

“For the purpose of an offence of bribery, the performance or non-performance of the promised act is irrelevant. Explanation 1 makes that clear. The argument in Narasimha Rao is that the performance of a bargain is a relevant consideration. In my opinion, this is flawed logic. And my submission is substantiated by the amended provision. The privilege conferred by these provisions with respect to a speech or vote would not be attracted if the offence is said to be completed independently under Section 7 of the Prevention of Corruption Act.”

Bribery, the solicitor-general repeated, can never be the subject matter of immunity, unless, in one out of a thousand cases, the offer and acceptance takes place within the house. Insisting that this angle had not been examined either by the minority or the majority, and in view of the amendment to Section 7 of the Prevention of Corruption Act, Mehta suggested that instead of declaring PV Narasimha Rao as bad law, the court could hold that it is per incuriam –

“…Since it does not take into account the statutory scheme of the prevention of corruption. Performance is irrelevant. Where everything is outside the house and the offence is completed outside, there’s no question of privilege or immunity being claimed.”

Other offences also have antecedent elements, cannot single out bribery: Raju Ramachandran

In rejoinder to Attorney-General Venkataramani’s argument that the ratio of PV Narasimha Rao would not apply to the facts of Sita Soren’s appeal, Senior Advocate Raju Ramachandran, pointed out that the law officer’s contentions had already been dealt with in his main argument. Besides this, he stressed the distinction between ‘legislature’ and the ‘house of the legislature’ in support of his contention that the word ‘vote’ within the meaning of Article 105(2) and 194(2) was intended to be read broadly to include a Rajya Sabha, presidential, or vice-presidential elections. Ramachandran also said that the attorney-general’s opinion that the majority had taken a ‘guarded view’ was ad idem with the petitioner’s submissions that this view would have to be preserved.

Next, responding to Solicitor-General Mehta and Sankaranarayanan’s argument that the offence of bribery would be complete at the time of the offer and the acceptance, outside the legislature, Ramachandran argued that no distinction could be made between different types of criminal offences. “Conspiracy, abetment, etc. are also offences. We cannot compartmentalise them. Anything which is criminal is criminal.”

The senior counsel, to illustrate his point, referred to Bhiduri’s controversial speech in the Lok Sabha. He argued that not only an offence of bribery but other offences including hate speech or defamation, may be preceded by criminal activity, such as a conspiracy to deliver such hate speech or defamatory speech. Ramachandran elaborated –

“Therefore, how far do we then go in attaching criminality? I am reiterating my submission in this context: You cannot bifurcate criminal offences and say we are only talking about bribery. It is not only bribery that has an antecedent element, any other criminal act can have an antecedent element.”

The senior counsel’s example of a criminal conspiracy within the meaning of Section 120A of the Indian Penal Code allegedly hatched with the object of delivering hate speech or defamatory speech, however, was met with discontent from the bench. Chief Justice Chandrachud pointed out that such a conspiracy would not become actionable under Section 120A since the act with respect to which individuals entered into the conspiracy was not illegal and protected by parliamentary privilege. The chief justice reasoned –

“There’s no conspiracy to commit defamation because there’s no defamation on the floor of the house. The speech is protected. You're saying that conspiracy is independent of the actual act, the actus reus. We are really on a hypothetical. But I am not sure that you are entirely right on the interpretation. Because if the act itself is not illegal, there cannot be a conspiracy.”

Ramachandran explained that this hypothetical example was necessary to point out the fallacy of the minority view’s approach of holding that legislators would be disentitled from being protected under Articles 105(2) and 194(2) because the offence of bribery took place before the performance or non-performance of an act.

Finally, before concluding, Ramachandran once again asked the court to consider the apprehensions raised in the majority judgment over a possible misuse of the law. The senior counsel argued –

“I would urge this court to take note of the majority’s caution that this can be misused. This is not something alarmist…The mere possibility of misuse. The mere possibility of misuse is not something this court will countenance because they are there to protect. But the possibility of misuse going back to Blackstone is the very basis of privilege. Misuse of, inter alia, criminal law forms the historical basis of this regime. Therefore, if this court keeps that in mind, you are not surrendering to the forces of fear but recognising the historical and constitutional basis of this privilege.”

Report of yesterday's hearing can be read here.