Supreme Court corrects course, ends immunity for bribe-taking legislators

A landmark ruling in the Sita Soren case overturns 1998 judgment that shielded MPs from prosecution, upholds principle of equality before law.

The Top Court’s 1998 judgment was challenged and overruled in the Sita Soren case, highlighting corruption in India’s Legislature. | Photo Credit: iStock/Getty Images

The 1998 judgment by a five-judge bench of the Supreme Court in P.V. Narasimha Rao vs State was a constant reminder of the moral decay of one of the key institutions of the Indian Republic—the legislature. The Supreme Court, time and again, had expressed its discomfort with that judgment in several cases, but could not reconsider it until a relevant case came up for hearing challenging its reasoning.

The discomfort was because a five-judge Constitution bench, in the 1998 case—by a narrow majority of 3:2—had sought to legitimise bribe-taking by legislators to uphold parliamentary privilege, through an erroneous reasoning, which cannot withstand legal scrutiny.

The discomfort was also due to the fact that the court, otherwise an upholder of constitutional morality in several recent cases, was bound by it given judicial discipline, as the 1998 judgment was delivered by a five-judge constitution bench, which could be overruled by only a seven-judges bench. Successive Chief Justices of India have been reluctant to constitute benches of seven judges to reconsider this judgment, either because the right case meriting it did not come up before the court, or the court’s calendar did not permit it.

Sita Soren vs Union of India was one such case that not only merited the reconsideration of P.V. Narasimha Rao by seven judges, but a unanimous judgment by them on March 4 helped to overrule it through a reasoned judgment. The judgment was delivered by the bench comprising Chief Justice of India D.Y. Chandrachud and Justices A.S. Bopanna, M.M. Sundresh, P.S. Narasimha, J.B. Pardiwala, Sanjay Kumar, and Manoj Misra.

The fundamental purpose and objective underlying Article 105(2) is that Members of Parliament, or as the case may be of the State legislatures under Article 194(2), must be free to express their views on the floor of the House or to cast their votes either in the House or as members of the Committees of the House without fear of consequences. But the majority judgment in P.V. Narasimha Rao distorted this to include immunity from criminal prosecution for any offence in connection with what they say or vote in the House.

In Sita Soren, the Supreme Court made it clear that the seriousness of the offence committed by the bribe-takers does not warrant a narrow construction of the Constitution. Such a construction runs the risk of impairing the guarantee of an effective parliamentary democracy, the court held.

The majority judgment in P.V. Narasimha Rao had resulted in an anomalous situation, where an MP who accepted a bribe and did not cast his/her vote could be prosecuted, while a Member who cast his/her vote was given immunity.

The immunity under Article 105(2) of the Constitution was operative only insofar as it pertained to what had been said or voted. Therefore, Ajit Singh, the MP who abstained from voting in favour of the no-confidence motion against the P.V. Narasimha Rao-led Congress government, was not protected by immunity and the prosecution against him would proceed, the majority judges had held in the 1998 case.

Besides, it was held that the bribe-givers could be prosecuted and did not have the protection of Article 105(2).

Justice S.C. Agarwal, who authored the dissent in P.V. Narasimha Rao held that an interpretation of Article 105(2) which enables an MP to claim immunity from prosecution for an offence of bribery would place them above the law. This would be repugnant to the healthy functioning of parliamentary democracy and subversive of the rule of law, he suggested.

Public interest matters

The majority judgment in P.V. Narasimha Rao had erroneously given a wide interpretation to the expression “in respect of” and granted immunity to MPs from criminal prosecution when they accept a bribe to cast a vote in Parliament. The objective of Article 105 is not to place MPs above the law when the offence has been committed before the MP enters the House of Parliament.

The minority judgment in P.V. Narasimha Rao, therefore, stated that the protection under Articles 105(2) and 194(2) is not available when the alleged criminal acts are committed outside Parliament.

The Narendra Modi government, whose Electoral Bonds Scheme was declared unconstitutional by the Supreme Court recently for encouraging corruption, adopted a moral high ground in this case. The Solicitor General, Tushar Mehta, submitted that under the Prevention of Corruption Act, the offence of bribery is complete on the acceptance of the bribe and is not linked to the actual performance or non-performance of the official function to which the bribe relates.

In the case involving Sita Soren, a Member of the Jharkhand Legislative Assembly, the Supreme Court agreed with this submission, which was also endorsed by a few interveners in the case.

Besides, the seven-judge bench held that the assertion of privilege by an individual Member of Parliament or State Legislature would be governed by a two-fold test. First, the privilege claimed has to be tethered to the collective functioning of the House. Second, its necessity must bear a functional relationship to the discharge of the legislator’s essential duties.

The doctrine of stare decisis provides that the Court should not lightly dissent from precedent. However, the Supreme Court has held in a consistent line of cases that the doctrine is not an inflexible rule of law, and it cannot result in perpetuating an error that would be detrimental to the public’s general welfare. Not rectifying a manifest error would be harmful to public interest and polity. The period over which the case has held the field is not of primary consequence, the bench held in Sita Soren.

The Sita Soren bench was also critical of the majority judges in P.V. Narasimha Rao for taking the object of Article 105 to be that members of Parliament must have the widest protection under the law to be able to perform their function in the House. This understanding of the provision is overbroad and presumptive of enhanced privileges translating to better functioning of members of the House, the bench held in the Sita Soren case.

Members of the Legislature and persons involved in the work of the Legislature’s committees must be able to exercise their free will and conscience to enrich the functions 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 him/her, the Sita Soren bench reasoned. 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 that deprives citizens of a responsible, responsive, and representative democracy, the judgment in Sita Soren reads.

The Sita Soren bench also agreed with the minority judgment in P.V. Narasimha Rao that the words “in respect of” used in Article 105(2) must be understood as “arising out of” and that a bribe taken by Members of the Legislature cannot be deemed as arising out of his vote. The minority opinion stated that the act of bribery was the receipt of illegal gratification prior to the making a speech or casting a vote inside the House.

The majority of judges in P.V. Narasimha Rao erroneously linked the offence of bribery to the performance of the act. The Jharkhand High Court too relied on the majority view that the appellant (Sita Soren) was not covered by the immunity as she eventually did not vote as agreed upon and voted for the candidate from her party.

The Sita Soren bench held that the offence of bribery is agnostic to the performance of the agreed action and crystallises based on the exchange of illegal gratification.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.