Offence Of Bribery Not Dependent On Actual Performance Of Act For Which Bribe Is Taken, Mere Acceptance Of Bribe Enough : Supreme Court

The offence of bribery is complete the moment illegal gratification is accepted and is not dependent on the actual performance of the promise for which the bribe was sought, stated the Supreme Court.

A 7-judge Constitution Bench of the Court made this observation in the momentous judgment holding that legislators accepting bribes for casting votes or giving speech in the legislature cannot claim legislative privileges under Articles 105 or 194 of the Constitution.

The 7-judge bench led by the Chief Justice of India was hearing a reference against the 1998 judgment in PV Narasimha Rao v. State (CBI/SPE) which held that MPs/MLAs are entitled to legislative immunity even if they have taken bribes in respect of the votes or speeches given by them in the legislature. The majority judgment in PV Narasimha also held that the legislators would be liable for prosecution only if they refused to cast votes or give speeches despite taking bribe.

While overturning the PV Narasimha Rao judgment, the Supreme Court observed that its approach was "paradoxical" as immunity was given to a person for acting in terms of the bribe.

"The offence of bribery is complete on the acceptance of the money or on the agreement to accept money being concluded. The offence is not contingent on the performance of the promise for which money is given or is agreed to be given," CJI DY Chandrachud wrote in the judgment.

Offence is complete one mere acceptance of undue advantage

The Court observed that the offence of bribery is completed the moment undue advantage is accepted. Therefore, the offence has taken place outside the legislature and hence the legislative privileges cannot be applied to it.

The judgment stated :

"Under Section 7 of the Prevention of Corruption Act, the mere “obtaining”, “accepting” or “attempting” to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The first explanation to the provision further strengthens such an interpretation when 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. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained."

Referring to the illustrations of the provision, the Court stated that "the offence of bribery crystallizes on the exchange of the bribe and does not require the actual performance of the act."

"Similarly, in the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete," the Court added.

Referring to the 2022 Constitution Bench judgment in Neeraj Dutta v. State (NCT of Delhi), the Court stated, "Consequently, the actual “doing or forbearing to do” the official act is not a constituent part of the offence. All that is required is that the illegal gratification should be obtained as a “motive or reward” for such an action or omission – whether it is actually carried out or not is irrelevant."

What happens in a situation when the bribe is exchanged within the precincts of the legislature?

The Court observed that this question, raised during the hearing, was "ill-conceived."

"When this Court holds that the offence of bribery is complete on the acceptance or attempt to accept undue advantage and is not dependent on the speech or vote, it automatically pushes the offence outside the ambit of Articles 105(2) and 194(2). This is not because the acceptance of undue advantage happened outside the legislature but because the offence is independent of the “vote or speech” protected by Articles 105(2) and 194(2). The remit of parliamentary privilege is intricately linked to the nexus of the act to the 'vote' or 'speech' and the transaction of parliamentary business."

Other stories about the judgment can be read here.