Are legislators immune to bribery charges?

How top court interpreted the privilege of legislators

In Sita Soren Vs. Union of India (04 March 2024), A seven-judge constitution of the Supreme Court, headed by Chief Justice of India DY Chandrachud, ruled that lawmakers facing bribery charges in connection with their speech and votes in the House cannot be immune from criminal prosecution.

In doing so, the court held that claims to parliamentary privilege by lawmakers can be subject to judicial review. And only Parliament cannot have the last word on the issue.

Apart from CJI Chandrachud, Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra were part of the Bench.

What the law says, what top court had to decide

Article 105(2) of the Indian Constitution confers on MPs immunity from prosecution in respect of anything said or any vote given in Parliament or on any parliamentary committee.

Article 105(2) of the Constitution state: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any one vote given by him in the Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of Parliament of any report, paper, votes or proceedings.”

Article 194(2) provides identical protections to members of state Assemblies.

Before the seven-judge bench was essentially the interpretation of his provision. This provision was previously interpreted in the 1998 JMM Bribery ruling, so the correctness of that ruling has to be tested.

Interpreting the law on privileges of MP and MLAs

Tracing the history of parliamentary privileges in India, the SC said that unlike the House of commons in the UK, India does not have ‘ancient and undoubted’ rights vested after a struggle between Parliament and the King. These rights in India, even during colonial times, have flown from a statute, which after independence transitioned to a constitutional privilege in a way that fits with the larger ideals of the Constitution.?

The court highlighted that the assertion of any such privilege will be governed by a two-fold test:

1. One is what the House exercises collectively - which would include the power to punish for its contempt, the power to conduct its own affairs, among others.
2. The second is for individual rights - say exercise of free speech by each member. Its necessity must bear a functional relationship to the discharge of the essential duties of a legislator. This, the court said, has to pass a test.

The ruling cited the “necessity test”, which means that for a member to exercise a privilege, the privilege must be such that without it “they could not discharge their functions.”

“Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194, naturally, accepting bribes cannot be said to be necessary to discharge one’s functions as a lawmaker, which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. Unlike, for example, having the right to free speech.

The ruling stated:

“Corruption and bribery of members of the legislature erode the foundation of Indian Parliamentary democracy. It is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible and representative democracy”

This means that accepting a bribe is an offence as is, and it does not depend on whether the public servant acted differently.?

The court also said that it would be a violation of the right to equality under Article 14 of the Constitution to create “an illegitimate class of public servants which is afforded extraordinary protection.” Such a classification, the court said, would be manifestly arbitrary?

The court elucidated, the same principle applies to bribery in connection with a speech in the House or a Committee.

Importantly, it underscored that the offence of bribery is complete at the point in time when the legislator accepts the bribe, whether or not it is followed up by voting or making a speech in the manner wanted by the giver of the bribe. Equally, the place where the bribe was offered or received did not matter. Section 7 of the Prevention of Corruption Act strengthens such an interpretation since 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.

The court also noted that the constitution envisions probity in public life.

Can court punish elected representatives?

The petitioners argued that the exercise of the Court’s jurisdiction is unwarranted since the Parliament also has the power to punish its members for contempt either by suspending them or sentencing them to a jail term - the SC had to decide whether this meant courts had no role to play.

Dismissing this, the SC held that both the court and Parliament can exercise jurisdiction on the actions of lawmakers in parallel, since its jurisdiction to prosecute a criminal offence and the authority of the House to take action for a breach of discipline operate in distinct spheres.

It reasoned “The potential of misuse against individual members of the legislature is neither enhanced nor diminished by recognising the jurisdiction of the Court to prosecute a member of the legislature who is alleged to have indulged in an act of bribery”.

The court noted that “The issue of bribery is not of exclusivity of jurisdiction by the House over its bribe-taking members. The purpose of a House acting against a contempt by a member for receiving a bribe serves a purpose distinct from a criminal prosecution”.

The Court also clarified that the principles enunciated by the verdict regarding legislative privileges will apply equally to Rajya Sabha elections and appointments of the President and Vice-President of the country. Accordingly, it overruled the observations in Kuldip Nayar Vs. Union of India (2006), which held that elections to the Rajya Sabha are not proceedings of the legislature but a mere exercise of franchise and therefore fall outside the ambit of parliamentary privileges under Article 194.

What was the case?

1. Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), was accused of accepting a bribe to cast her vote in favour of a certain candidate in the Rajya Sabha elections of 2012.
2. Soon a chargesheet was filed against her.
3. In 2014, the Jharkhand High Court dismissed Ms. Soren’s plea wherein she claimed she enjoyed legal immunity under Article 194(2).
4. The dismissal in the High Court led to an appeal being filed in the Supreme Court.
5. On 20 September 2023, a five-judge Bench headed by CJI Chandrachud while hearing the appeal doubted the correctness of the majority view in P.V. Narasimha Vs. State (1998) and accordingly referred the matter to a seven-judge Bench while underscoring that it is an “important issue that concerns our polity”.

What was the 1998 ruling that was overruled?

Recalling 1998: Majority’s reading of Art 105 and 194

On 04 March 2024, The Supreme Court overturned its 1998 judgment in PV Narasimha Rao Vs. State (CBI/Spe), in which a five-judge Bench held by a 3-2 majority that legislators were immune from prosecution for taking a bribe in connection with their vote in the House.

What was the reasoning of the court in 1998?

A no-confidence motion and allegations of bribery?

At a time of economic and political upheaval in the country, Ajoy Mukhopadhyay of CPI(M) introduced a motion of no-confidence against Prime Minister PV Narasimha Rao in Lok Sabha on 26 July 1993.

Rao’s congress party had 251 MPs at the time, 13 short of majority in the 528-member Lok Sabha. However, the motion was defeated after 14 opposition MPs voted with the government- and Rao and the Congress stayed in power.

In 1994, reports emerged that MPs of the Jharkhand Mukti Morcha (JMM) involving former Union Minister Shibu Soren, the father-in-law of Sita Soren, the petitioner in the present case. Mr. Soren, along with some of his party members, were accused of taking bribes to vote against the no-confidence motion against the then P.V. Narasimha Rao government. In 1996, the Central Bureau of Investigation(CBI) opened an investigation.

The CBI registered cases against six JMM MPs, accusing them of accepting bribes to vote in favour of the government. Ajit Singh, then in the Janata Dal, was accused of accepting a bribe to abstain from voting

After Delhi High Court refused to quash the charges, Narasimha Rao and the other accused appealed to the Supreme Court?

Majority opinion: Immunity under Articles 105(2), 194(2)

The Supreme Court had to decide whether legislators, by virtue of their office, enjoyed immunity from prosecution

Justice SP Bharucha (later Chief Justice of India), who authored the majority opinion for himself and Justice Rajendra Babu, while acknowledging the seriousness of the offence, ruled that "a narrow construction of the constitutional provisions" may result in the impairment of the guarantee of “parliamentary participation and debate.” Thus, the court ruled that the bribe takers who cast their vote against the no-confidence motion were immune from criminal prosecution under Article 105(2).

Pointing to the intended purpose of the Article, Justice Bharucha said that MPs must be allowed to exercise their freedom of speech in Parliament without fear of reprisal through court proceedings, and that their votes must be treated as an extension of this freedom. He held that in order to protect the independence of MP’s, the phrase “in respect of” in the Article must be given a “broad meaning” to protect the MP from all civil or criminal proceedings that have a connection with anything they may have said or voted for in parliament?

However, the court refused to extend the same protections to Ajit Singh, since he had neither made a speech nor cast a vote. It also refused to extend protections to bribe givers. Justice GN Ray agreed with this interpretation of Article 105(2) in his concurring opinion.

Dissent: accepting a bribe is separate from 'vote' or 'speech'

Justice SC Agarwal authored the minority opinion for himself and Justice Dr AS Anand opined that legislative immunity granted under the Constitution could not be extended to bribe cases. In the present case, this dissent had a major bearing to overturn the 1998 ruling.

Justice Agarwal noted that immunity from prosecution for bribery charges would place legislators above the rule of law, which is not the purpose of Article 105(2).

Justice Agarwal noted that If an MP who “has bartered away his independence by agreeing to speak or vote in a particular manner in lieu of illegal gratification (bribe)” is protected from criminal prosecution, MPs thereon “would only be seeking a licence to indulge in such corrupt conduct”.

The majority’s interpretation of the “in respect of” phrase would create an “anomalous situation”. In such cases, MPs could be prosecuted for bribery only if they did not speak or vote in accordance with the purpose of the bribe, but would be immune from prosecution if they did give the necessary speech or vote.

Justice Agarwal proposed that the phrase “in respect of” should be read as “arising out of” so that the legislator is protected from any civil or criminal liability that follows the speech or vote given. This would also allow legislators to be held accountable for criminal acts that precede the vote or speech by recognising that these acts are independent and separate from legislators’ actions in Parliament or a Legislative Assembly.

Justice Agarwal stated that the offence of bribery is complete the moment a bribe is accepted, and that it is irrelevant to consider if the purpose of the bribe was carried out - including when the purpose was a speech or a vote by a legislator??