Do MPs/MLAs Taking Bribe For Votes Have Immunity From Criminal Law? Supreme Court Refers To 7-Judge Bench

The Supreme Court on Wednesday referred the judgement in PV Narasimha Rao v State (1998) to a seven-judge bench. The judgement in PV Narasimha Rao had held that legislators enjoyed immunity from prosecution in cases of bribery in relation to parliamentary vote and speech as per Article 105(2) and Article 194(2) of the Indian Constitution. However, it had added that the immunity would only be extended if the legislators carried out the act that they had taken the bribe for.  In other words, if a legislator took a bribe to vote for a particular candidate but later decided to not go ahead with the same and voted for someone else, the immunity would not be extended to them. 

A 5-judge Constitution Bench comprising Chief Justice of India DY Chandrachud along with Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Misra heard the arguments on whether the judgement in PV Narasimha Rao required to be referred to a larger bench. It may be noted that the present case pertained to Sita Soren, a member of the Jharkhand Mukti Morcha, who was accused of accepting bribe for the purpose of voting in favour of a particular candidate in the 2012 Rajya Sabha Elections. Subsequently, a chargesheet was filed against by the Central Bureau of Investigation. Challenging the same, Soren filed a petition before the Jharkhand High Court on the ground that she enjoyed immunity under Article 194(2) of the Constitution, 1950, which contemplates, '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'. The High Court dismissed the petition. During the course of hearing in the appeal before the Apex Court, reliance was placed on the judgment in PV Narasimha Rao. 

Facts Of The Case Do Not Require Court To Adjudicate On Correctness of Narasimha Rao: Appellant & AG

Senior Advocate Raju Ramachandran, appearing for the appellant Sita Soren, argued that the mater was a regular criminal appeal and it only involved the question of the application of PV Narasimha Rao. He added that neither side had questioned the judgement in PV Narasimha Rao. Further, judicially there was no articulation of the doubt that PV Narasimha Rao needed to be referred to a larger bench. He also underlined that in one of his previous cases (Kalpana Mehta v Union of India) CJI DY Chandrachud had observed that correctness of PV Narasimha Rao wasn't involved in the given case and thus, the same shall be only questioned in appropriate proceedings. Thus, since in the given case to there were no questions that arose on the correctness of PV Narasimha Rao, the same could not be considered. 

Similar arguments were raised by the Attorney General for India R Venkataramani who stated that there was no need for the judgement to be referred to a larger bench. He also stated that the facts of the present case did not require for the court to go into the correctness of the judgement in PV Narasimha Rao. He further added that in order to qualify for a protection under Article 194, bribery had to be taken for proceedings for business or function of the house. However, in the present case, Soren had received a bribe for the no confidence motion in the parliament. He added– "There is nothing to do with the business of the house. The function–it must have a nexus with the legislative business or purpose...Here there is nothing related to the business of the house. So there is no immunity attached to it."

India Stands Out Like A Sore Thumb Because of Narasimha Rao Judgement: Sankarnarayanan

Senior Advocate PS Patwalia, amicus curiae in the matter, argued that there was a "fractured kind of concurrence" in the PV Narasimha Rao judgement. He stated that in the three issues, 2+1 judges had concurred on one judgement and 2+1 on another. Therefore, there was no clear concurrence on the issue of immunity. He further argued that the majority judgement had relied on Johnson v. United States, which even in the original jurisdiction, was no longer being followed. Thus, he stated that the judgement had to be referred to a larger bench. 

At this juncture, CJI remarked–

"The only question is - should we await it to arise it at sometime in the future or lay down a law? Because we must also not ignore that if it also furthers public morality on part of our elected representatives, then we should not defer our decision to some uncertain day in the future. Isn't it?"

While the AG argued that the present case must rest on its own facts, CJI said–

"As a Constitution Bench, if we have a particular issue which deeply affects the morality of our polity- we shouldn't in that sense not take an opportunity to straighten the law. We have four eminent counsels appearing in this. What better opportunity to straighten the law? Normally you don't want to get into a broader issue of law where you may not feel that you'd get the correct assistance because then the entire burden is on us. Even then we take up the burden sometimes. But here you have squarely- a conflict between the view points...we should set the law straight."

Senior Advocate Gopal Sankarnarayanan, appearing for an intervenor, supported the view of the amicus and stated that the entirety of the case revolved around the interpretation of three words in Article 105 and 194- "in respect of". He argued–

"I ask myself that if I were to have taken a bribe and then have second thoughts - a prick of conscience, and I decide not to vote as the bribe demanded, I wouldn't have my immunity. But if I were a good boy and acted as per the bribe and went and voted in accordance with that- I would suddenly be immune. This absurdity has led to criticism."

He underlined that even when the judgement in Narasimha Rao was passed, it faced a lot of criticism. Further, in countries such as the US and the UK, there was no such immunity granted and India stood out "like a sore thumb" because of the judgement.

Object Of Article 194 Not To Set Apart MLAs As Persons Who Wield Higher Privileges: Bench

After hearing the arguments, the court pronounced a detailed order and stated that it was not inclined to accept the plea that the correctness of decision in PV Narasimha Rao did not arise in the present case. The bench held–

"Firstly, it is common ground that the impugned judgement of High Court relies upon the judgement in majority in Narasimha Rao. Secondly, the defence itself relies on decision of majority. The correctness of view propounded in majority of Narsimha Rao needs to be dealt with."

The bench noted that it was true that the members of state legislature must be free to express their views on the floor of the house without fear of consequences. However, it added–

"While Article 19(1)(a) recognizes individual right to free speech, Article 105(2) institutionalises that right...The object of Article 105(2) or 194(2) does not prima facie appear to render immunity from the launch of criminal proceedings for violation of criminal law which may arise independently of the exercise of rights and duties as a member of parliament."

It also added that the majority judgement had not dealt with the question of when the offence was complete. The court said–

"One of us (CJI Chandrachud) while delivering judgement in Kalpana Mehta had occasion to observe that correctness of Narasimha Rao would fall for reconsideration in an appropriate case in future should it become necessary. For the above reasons, we're of the view that the correctness of the view of majority in Narasimha Rao shall be considered by a larger bench of seven judges."

While concluding the proceedings, the bench also added that–

"The purpose of Article 105(2) and Article 194(2) is to ensure that members of parliament and of state legislatures are able to discharge duties in an atmosphere of freedom without fear of the consequences that may follow. The object clearly is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land which citizens of the land do not possess."

 Case Title : Sita Soren v. Union of India CRIMINAL APPEAL NO. 451 OF 2019

Citation : 2023 LiveLaw (SC) 823;  2023INSC856

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