Bribery Not Protected By Legislative Privileges; No Immunity For MPs/MLAs Taking Bribe For Vote/Speech In Legislature : Supreme Court

The latest verdict, setting aside the earlier ruling, was handed out by 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.

In the 1998 case, a five-judge bench held by a 3:2 majority that members of parliament and state legislatures were immune from prosecution in bribery cases related to their speech or vote in the house in enjoyment of the parliamentary privileges conferred by Articles 105(2) and 194(2) of the Constitution, provided they upheld their end of the bargain for which 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 the challenge in the Supreme Court. After a two-day-long hearing, the seven-judge bench reserved its verdict in October last year.

Today, the constitution bench held that a member of parliament or the state legislature cannot claim immunity from prosecution on charge of bribery in a criminal court by virtue of Articles 105(2) and 194(2) of the Constitution, observing -

"We disagree with and overrule the judgment of the majority on this aspect. We have concluded that first, the doctrine of stare decisis is not an inflexible rule of law. A larger bench of this court may reconsider a previous decision in appropriate cases bearing in mind the tests which have been formulated by this court. The judgment in PV Narasihma Rao which grants immunity from prosecution to a member of a legislature who has allegedly engaged in bribery for casting a vote or making a speech has wide ramifications on public interest, probity in public life, and parliamentary democracy. There is a grave danger of this court allowing the error to be perpetuated if the decision were not reconsidered."

The apex court also noted that unlike the House of Commons in the United Kingdom, India does not have 'ancient and undoubted privileges' vested after a struggle between the Parliament and the monarch. Privileges in pre-independence India were governed by statute in the face of a reluctant colonial government. This statutory privilege transitioned into a constitutional privilege after the commencement of the Constitution. However, a legislator cannot claim immunity from prosecution on charges of bribery for a vote or a speech by relying on these constitutional provisions since it fails to fulfil the two-fold test of first, being tethered to the collective functioning of the House, and second, being necessary for the discharge of the essential duties of a legislator. The bench also added -

"Articles 105 and 194 of the Constitution seek to sustain an environment where debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a particular manner because of an act of bribery...Bribery is not rendered immune under Articles 105 or 194 because a member engaging in bribery indulges in a criminal act which is not essential for the function of casting a vote or giving a speech in the legislature. Corruption and bribery by members of the legislatures erode probity in public life...We hold that bribery is not protected by Parliamentary privileges."

It also held that the question of whether a claim to privilege in a particular case conforms to the Constitution is amenable to judicial review. 

Offence of bribery complete the moment illegal gratification is taken

The Court held that the offence of bribery as per the Prevention of Corruption Act is complete the moment the illegal gratification is taken and it is immaterial whether the legislator votes or gives a speech later in the house in terms of the bribe.

"The offence of bribery is agnostic to the performance of the aggrieved action and is crystallised on the exchange of illegal gratification. It does not matter whether the vote is cast in the aggrieved direction or if the vote is cast at all. The offence of bribery is complete at the point in time when the legislator accepts the bribe," the judgment authored by CJI DY Chandrachud stated.

The Court also held that the PV Narasimha judgment resulted in a paradoxical situation where a legislator, who accepts a bribe and votes accordingly is protected whereas a legislator, who despite taking a bribe votes independently is prosecuted. This interpretation is against the letter and spirit of Articles 105 and 194 of the Constitution.

Corruption by legislators erodes the foundation of democracy

The judgment stated :

"Articles 105 and 194 of the Constitution seek to create a fearless atmosphere where debate, deliberations, and exchange of ideas can take place within the Parliament and state legislature. For this exercise to be meaningful, members of the legislature and the persons involved in the work of any committee must be free from fear or favour induced into them by a third party. These members must be able to exercise their free will and conscience to enrich the functionings of the House. This is exactly what is taken away 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"

"Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy. It is disruptive of the aspirations and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive, and representative democracy."

Other conclusions of the judgment

The jurisdiction which is exercised by a competent court to prosecute a criminal offence and the authority of the House to take action for a breach of discipline in relation to the acceptance of a bribe by a member of the legislature exist in distinct spheres. The scope, purpose and consequences of the court exercising jurisdiction in relation to a criminal offence and the authority of the House to discipline its members are different;

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.

Oral arguments 

It was on September 20, 2023, that a 5-judge bench led by CJI Chandrachud referred the matter to a 7-judge bench after expressing prima facie disagreement with PV Narasimha Rao. 

During the hearing, Senior Advocate Raju Ramachandran argued against overruling the PV Narasimha Rao judgment, highlighting the caution needed when considering overturning long-standing precedents. He stressed that the concept of constitutional privileges and immunities was a crucial pillar of the constitutional framework, aimed at safeguarding legislators from executive influence. Ramachandran also traced the historical evolution of legislative immunities, emphasising the need for legislators to be free from fear of prosecution to vote fearlessly. Any attempt to narrow the scope of Articles 105(2) and 194(2) would be constitutionally unjustified, as it might hinder legislators from performing their duties without fear or fetter, he argued.

Senior advocates PS Patwalia and Gopal Sankaranarayanan opposed Ramachandran's arguments. Supporting the minority view in PV Narasimha Rao, Patwalia argued that the offense of accepting a bribe is complete at the time of acceptance, regardless of performance.

Sankaranarayanan contended that the purpose of the constitutional provisions was to protect the legislative process's integrity, not shield individuals from criminal proceedings arising from a betrayal of the electorate's trust. Proposing the 'essential functions' test, he argued for a narrow interpretation of the provisions, stating that immunity should not extend to acts remotely connected to legislators' duties. Sankaranarayanan stressed that criminal liability should apply equally to legislators as to any other individual, without the cloak of immunity for acts outside their official functions.

Senior Advocate Vijay Hansaria echoed Sankaranarayanan's views, advocating for the 'integral part' test proposed in the minority judgment by Justice SC Agarwal in the 1998 judgment. He warned against the increasing criminalisation of politics and suggested that interpreting the immunity provisions should decrease such criminalisation.

Attorney-General R Venkataramani proposed a third test, a 'functional test', suggesting that immunity should extend only to a speech or a vote necessary to discharge legislative duties without fear of consequences. He also suggested the establishment of an in-house committee in legislatures as a 'speech and vote watch'.

Solicitor-General Tushar Mehta, in turn, 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 the amended Section 7 of the Prevention of Corruption Act relating to the offence of a public servant being bribed. Even obtaining, accepting, or attempting to obtain an undue advantage is considered an offence under this provision, even without the improper performance of a public duty. The law officer suggested that the court could hold that PV Narasimha Rao is per incuriam, as it does not account for the statutory scheme of the prevention of corruption.

Other stories about the judgment can be read here.