Supreme Court 7-Judge Bench Examines Scope Of Immunity For MPs/MLAs Taking Bribes For Speech/Vote In Legislatures

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 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.

Today, the seven-judge constitution bench led by Chief Justice Chandrachud began reexamining this significant judgment on legislative immunity and bribery, which has held the field for more than 25 years. At the outset of the hearing, Solicitor-General Tushar Mehta insisted that the issue should be narrowed down to an analysis of the Prevention of Corruption Act, 1988 without revisiting Article 105, arguing that the performance of the offending act was irrelevant to determine criminality. In response, the Chief Justice said that the question of immunity would ultimately have to be discussed since the majority of three judges in PV Narasimha Rao held that immunity could be claimed irrespective of criminality, with the only exception being a legislator who accepts a bribe but does not cast a vote or deliver a speech as promised. At the same time, Chief Justice Chandrachud assured the law officer, “We will not be dealing with issues that do not strictly arise.”

Legislators need protection from a powerful executive misusing their powers: Raju Ramachandran

Opening the debate, Senior Advocate Raju Ramachandran argued against overruling PV Narasimha Rao on the ground that it did not pass muster of the tests laid down by the Supreme Court for overturning judicial precedents. He called for caution when embarking on this exercise, pointing to the limitations imposed by the court on itself, especially because the impugned ruling has held the field undisturbed for over a quarter of a century. Next, addressing an argument that the interpretation given by the PV Narasimha Rao bench was the ‘antithesis of the rule of law’, Ramachandran said that the concept of constitutional privileges and immunities was not in derogation to the rule of law but a distinct pillar of the constitutional edifice. The senior counsel also invoked the literal or plain meaning rule of interpretation, arguing that any attempt to whittle down the protective scope of Articles 105(2) and 194(2) in an attempt to adhere to what is ‘seemingly logical, fair, or reasonable’, would be constitutionally unjustified. The minority judgment penned by Justice SC Agarwal proposed to restrict the scope, Ramachandran told the bench –

“There is no justification for this. This would be violence to the plain language. This reading flows from moral outrage. This is the error in Justice Agarwal’s judgment. He is conscious that the power of expulsion is there, but he says that this is not a satisfactory solution. It is not for the court to find perfect solutions to all moral and political conundrums.”

Next, Ramachandran traced the historical evolution of the regime of immunities and privileges and highlighted its importance in the context of insulating legislators from executive influence. He said –

“Independence of legislators from the crown, and in a democracy, a democratic executive, is a key consideration. A powerful executive – whatever the political party – is a fact of political life today in India, just as it is a fact that the law is misused. If a legislator is to vote fearlessly, they should be free from fear of prosecution. This is not an amoral judgment. The majority was just as anguished and shocked as any conscientious citizen or a court should feel. Nevertheless, they decided to read the Constitution as written to ensure that legislators are granted the protection they need.”

In response to Ramachandran’s apprehensions of a ‘misuse of law’, Chief Justice Chandrachud asked, “Should we grant immunity to political corruption on an apprehension of a misuse of law, because an apprehended misuse of law is always amenable to protection from court?”

The senior counsel responded that this apprehension of misuse has been at the root of this regime of immunities and privileges and asked the court to “continue what has stood the test of time”. In support of this contention, he stressed the freedom of speech that the constitutional provisions sought to protect, saying –

“Legislators would be extremely cautious, if not wary, to make statements or vote against ruling party, if this immunity is chiselled beyond the present form. They would perform their duties with fear and fetter. The concept of a chilling effect, since it applies to ordinary citizens, must equally apply to politicians.”

Justice Narasimha, in this connection, pointed out that when adjudicating on the scope and extent of immunity, the constitutional intendment, in the context of votes cast or speeches rendered, would have to be balanced with the mischief that could happen with executive intervention. Justice Sundresh elaborated, “What we are saying is that we can at best be restricted to business that the parliament is expected to transact. Nothing more.”

In response to this, Ramachandran agreed that there had to be a nexus with the legislator’s work or duty as mandated under the Constitution or a relevant statute for them to be entitled to the constitutional immunity under Articles 105(2) and 194(2). He explained this point with an illustration –

“If a member commits vandalism or physical assault, it obviously cannot be protected. By no standard can it be said to have a nexus. Similarly, the test may perhaps be applied to hate speech on the floor of the house. But whether the offence of bribery in criminal law is complete when a bribe is given and is not dependent on the performance of a promised favour, is of no consequence to the constitutional immunity enjoyed by a legislator. Once a speech is made or a vote given, the nexus is fulfilled.”

Before concluding, Ramachandran also addressed the Central Bureau of Investigation’s argument that voting for Rajya Sabha elections would in any case not come within the protective cover of Article 194(2) on the ground that it was not a ‘legislative vote’. Disputing this interpretation, the senior counsel stressed the distinction between a ‘house of the legislature’ and the legislature itself. He also doubted the respondents’ reliance on Kuldip Nayar (2006) in this context, and attempted to distinguish this ruling –

“Legislature is a compendious term, which is in permanent existence as an organ of State – just like the judiciary or the executive. Legislature does not mean a house of the legislature. If a member is constitutionally enjoined to vote, they have all the protection of Articles 105(2) and 194(2). This particular vote is in the lobby of the Jharkhand legislature, but how do you divorce it from a house of the legislature? Kuldip Nayar is completely distinguishable since it was delivered in a different context. If the ratio of this judgment is what they say is, I have no hesitation in saying before a seven-judge bench that Kuldip Nayar is completely wrong.”

Consequences for an illegal act of accepting a bribe cannot be left to vagaries of parliamentary discipline: Gopal Sankaranarayanan

Senior advocates PS Patwalia and Gopal Sankaranarayanan opposed Ramachandran’s arguments, arguing that the object and purpose of the Articles were to ensure the freedom of dialogue and insulate the legislative process from external influence, and not to protect one individual from criminal proceedings arising out of what Sankaranarayanan described as a ‘betrayal of the solemn trust’ of the electorate. To explain why a narrow interpretation of the words ‘in respect of’ in the second clause of Articles 105 and 194 is desirable, Sankaranarayanan contended that any broad interpretation would allow a legislative member to claim a cloak of immunity for acts that are remotely connected to their duties and functions as long the proximity could be established –

“A bribe has nothing to do with the legislative process. This expression must be read narrowly, because any other interpretation would violate the sanctity of the democratic process and the trust in legislators placed by the voting public. The bargain underpinning the democratic system is completely undone when you allow an individual to get away with the betrayal of the solemn trust of the voting public in their representatives. So, far from giving it a wide interpretation, this expression should be given the narrowest interpretation. Normal criminal law should apply as much as to an MP or an MLA as must as it does to any man on the street, subject to procedural impediments.”

In support of this contention, Sankaranarayan distinguished criminal proceedings arising out of an illegal act and the internal procedure of expelling a legislator, insisting that the consequences of a criminal act could not be left to the ‘vagaries’ of the discipline of the legislative body’ –

“There are previous instances of legislators being expelled, with the argument being that there is a power of expulsion. But we have to compare that with what is being argued today. This is about criminal prosecution. If a criminal prosecution is allowed, all consequences should follow for that individual. In Indira Gandhi’s case, she was expelled in 1978 and this was rescinded in 1980. This cannot be the arbitrary manner in which we leave a criminal process, to the vagaries of the discipline of the parliament. The parliament will decide separately, but that is completely different from criminal prosecution.”

Criminal liability to fasten irrespective of performance of act for which bribe is accepted: PS Patwalia

Patwalia told the bench that the actual performance of a bargain, i.e., an act for which a bribe is accepted by a legislator would have no bearing on the provisions, and in neither case will they be able to claim immunity, supporting the minority view in PV Narasimha. To explain this, he pointed out that the offence of accepting a bribe is complete at the time of acceptance under criminal law –

“If the offence is complete at the time of acceptance, then performance [is of no consequence]. Even under normal law, if you take a bribe for doing a legal act, you are guilty; even if you take a bribe and do not do the act, you are guilty. Only offer and acceptance have to be proved. That is the law.”

He contended – and this was later echoed by Sankaranarayanan – that the object of the parliamentary immunity-granting constitutional provisions was to protect the integrity of the legislative process and ensuring the legislators’ independence. Therefore, Justice Agarwal’s view, he said, was the correct view. “Unless a legislator is participating in the legislative process, there is no question of immunity kicking in,” he added.

Patwalia’s statement about participation in the legislative process prompted an extensive discussion on the meaning of the term, with Justice Narasimha asking whether ‘participation’ included silent participation without casting a vote or delivering a speech on the floor of the house. Chief Justice Chandrachud illustrated this using an example –

“What does this clause intend to cover? Immunity from being sued for saying something or voting in a particular manner. Now, suppose someone sues a legislator for keeping quiet on an important issue, arguing that liability arises out of torts or civil wrongs. Can the legislator not claim immunity then? Immunity attaches by virtue of participation in proceedings. But if you read these provisions very strictly, immunity will not attach to mere participation, but only when a legislator speaks or casts a vote. That will be a restricted meaning. Now, if you confine this only to those who speak or vote, will other members not speaking or casting votes be made liable?”

In response, Patwalia agreed that even if a member of the parliament or the state legislature silently participated in the proceedings, they would be entitled to claim immunity –

“The immunity will attach to all proceedings in the parliament. So if they are being prosecuted on the basis of their participation in proceedings, immunity will attach. Logically, members not casting votes or delivering speeches will have to be included. Their liability is arising out of their participation in the proceedings.”

The chief justice pressed further, saying that the dichotomy arising out of Justice Bharucha’s judgment and Justice Agarwal’s criticism of that anomaly would not arise if the provisions were interpreted to encompass mere participation. Therefore, the only question left to examine was if a legislator could enjoy immunity from criminal prosecution for accepting a bribe, irrespective of whether they spoke or cast their vote in the legislature –

“In a lighter vein, the respondent’s lawyer who keeps quiet in court knowing he has a difficult case but the judge is against the petitioner, is participating equally. Likewise, in the parliament, immunity attaches to every constituent member irrespective of whether you are speaking or casting your vote. Therefore, both stand on the same footing. Thus, Justice Bharucha's dichotomy will cease to exist, and Justice Agarwal's criticism of that will cease to exist. Now, the question is whether there’s an immunity from criminal prosecution, irrespective of whether a legislator spoke or cast their vote.”

But the court would have to consider the apprehension over the misuse of the law, which weighed with Justice Bharucha, the chief justice told Patwalia. Replying to this, the senior counsel pointed out Justice Agarwal’s response that a mere possibility of misuse was not a ground to confer extra coverage from criminal proceedings.

Notably, on the topic of ‘silent participation’, Justice Narasimha asked how the nexus would be established in an event where the legislator does not cast a vote or deliver a speech. The judge also questioned whether immunity could be claimed by a legislator who is promised a bribe after upholding their end of the bargain. Sankaranarayanan answered these during his turn, telling the bench that the moment when a legislator accepted to take a bribe – regardless of when it was given and received – the act would be caught in the net of Section 7 of the Prevention of Corruption Act. On the issue of proving the nexus, the senior counsel said that it was a question of prosecution that would not arise when considering the constitutional aspects of the provisions.

This matter will be taken up again tomorrow, October 5.