Authored by Jaiverdhan Singh, a 4th-year law student at Maharashtra National Law University, Nagpur.
"Politicians are its creatures, too. They are the easiest of all humans to corrupt."
- Peter F. Hamilton
Introduction
“It (corruption and bribery) is destructive of the aspirations and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive, and representative democracy.”
The said remarks were made by the seven-judge Constitution bench of the Supreme Court while pronouncing its verdict on the question regarding whether MPs and MLAs are immune from prosecution for accepting bribes in return for making a speech or casting a vote in the legislature. The Court unanimously ruled that parliamentary privileges do not screen lawmakers from the legal consequences of bribery Sita Soren v. Union of India, 2024. In doing so, the court overruled the controversial P.V. Narasimha Rao judgment (1998) which paradoxically granted immunity to lawmakers who accepted bribes and voted in accordance with the agreed direction of the bribe-giver but denied to those who took bribes but voted independently.
This piece discusses the recent Supreme Court ruling (Sita Soren case) that held that bribery is not protected by parliamentary privileges. Further, it discusses the scope, ambit and purport of parliamentary privileges in India, as has been laid by the Court in this judgment.
Understanding Parliamentary Privileges
Erskine May defines parliamentary privileges as, “the sum of certain rights enjoyed by each House collectively......and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.” In essence, parliamentary privileges encompass the collective rights of the House and the individual rights of its members. The other caveat is that privilege must be such that ‘without which they could not discharge their functions.’ So, Parliamentary privileges can be defined as those rights and immunities that are necessary for the House and its members to discharge their legislative functions and that aids in the smooth conduct of the House.
In India, Articles 105 and 194 of the Constitution deal with the powers, privileges and immunities of the Members of Parliament and Members of Legislative Assemblies respectively. Article 105(1) guarantees freedom of speech in the Parliament. The scope and ambit of freedom guaranteed under the said clause is wider than the ‘freedom of speech’ guaranteed under Article 19(1)(a). Freedom of speech under Article 105(2) is not subject to limitations imposed by Article 19(2) but is only subject to Article 121 and rules governing the procedure of parliament. As parliament acts as a forum for deliberation and discussion on issues of national importance and the bills that are table in the house, the constitution framers envisaged that there must be a free flow of ideas and every member must be able to raise his voice and put forward the aspirations of his/her constituents without any fear or favour. Article 105 (2) provides immunity to the Member of the Parliament from the wrath of the court “in respect of” any speech made or for any vote given in the Parliament. Article 105 (3) empowers the parliament to codify the privileges and until parliament makes a law to that effect, the privileges will be pari-passu to those of members of the House of Commons. Article 105 (4) extends the afore-said privileges to those who have a right to speak and take part in the proceedings of the Parliament (e.g. Attorney General of India).
Overruling P.V. Narasimha Rao Judgment
The instant case reached the apex court in the form of a criminal appeal from the judgment of the High Court of Jharkhand denying relief to Sita Soren, a member of the Jharkhand Legislative Assembly. The allegation against her was that she accepted a bribe from an independent candidate for casting her vote in his favour. The appellant subsequently knocked doors of the Jharkhand High Court to dismiss the criminal proceedings against her. She based her argument on the P.V.N. Rao judgment that cloaked lawmakers from prosecution for accepting bribes in exchange for their votes in Parliament or an Assembly. The High Court denied her relief on the ground that though the legislator had accepted a bribe she did not cast her ballot in tune with the direction of the bribe-giver, and she is not entitled to relief under Article 194(2). In view of this, the apex court decided to reconsider the 1998 judgment as the issue arising was of ‘general public importance.’
The court in this decision laid the following arguments for keeping bribery outside the ambit of parliamentary privileges.
Necessity Test
Parliamentary privileges are an essential component of a deliberative democracy. The object is to enable lawmakers to express their voices freely without any fear or favour. To allow them to engage freely in parliamentary debates, broader protection is provided from all civil and criminal proceedings related to their speech or vote. However, the privileges and immunities exercised by lawmakers must be directly connected to the functioning of the House and the conduct of its business. One must bear this fact in mind that the purpose of the privileges was not to put lawmakers on a different footing from an ordinary citizen in the application of laws. As has been rightly pointed out in this judgment “to give any privilege unconnected to the functioning of the Parliament or Legislature by necessity is to create a class of citizens which enjoys unchecked exemption from ordinary application of the law.”
In the Amarinder Singh case (2010), the court ruled that legislative privileges should be used to ensure that legislative duties can be performed without hindrance. The aim of parliamentary privileges is to guarantee that members of the House can participate in discussions and express their views freely, without the fear of harassment for their actions as members of the House. This protection is crucial because an MP who makes a speech or casts a vote that displeases those in power could otherwise face legal prosecution. The constitution framers did not intend to give any privilege unconnected with the functioning of the house and hence only those privileges were granted that are necessary to ensure that the house performs its functions freely. By a series of judicial pronouncements, it is now clear that the exercise of the privilege must be essential to safeguard the integrity of legislative functions and the House as a whole. Hence, a member cannot claim a privilege unconnected with the functioning of the house.
In the K. Ajith Case (2021), the Supreme Court refused to allow the withdrawal of criminal prosecution against members of the Kerala legislative assembly who were accused of vandalism in the assembly precincts. The accused contended that the prosecution against them is not sustainable in the eyes of the law as they were protected by legislative privileges under Article 194 of the constitution as the said act of ‘vandalism’ was committed on the floor of the house. The apex court rejected their contention and ruled that legislative privileges cannot be claimed to seek protection from the application of the law of the land. Further, the court opined that the destruction of property within the four walls of assembly as a mark of protest cannot be regarded as essential for exercising their legislative functions. The legislators being the people’s representatives must bear this fact in mind that the precincts of assembly or parliament are available to them for raising the voice of their constituents and addressing their grievances and not to commit criminal acts and seek protection under the garb of privileges.
In the Lokayukta, Justice Ripusudan Dayal case (2014), the Supreme Court ruled that lawmakers are not exempt from criminal prosecution under the garb of parliamentary privileges. The Court further stated that members of the House cannot use their constitutional privileges to shield themselves from ordinary criminal law. Hence, it can be safely concluded that any broad interpretation of parliamentary privilege, which provides protection for acts not related to legislative functions, is undesirable and militates against the very idea of granting privileges. Legislators seeking immunity must prove that the act in question is connected to their legislative duties to claim a certain privilege.
Bribery Not Contingent Upon The Performance of The Agreed Act
Another ground on which the court overruled the 1998 judgment was that the offence of bribery is complete on the receipt of the bribe, and it is not contingent upon the performance of an illegal promise by the receiver of the bribe. Also, Section 7 of the Prevention of Corruption Act corroborates this view. It stipulates, under Explanation 1 that “.... obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offense even if the performance of a public duty by public servant, is not or has not been improper.”
In the case of Chaturdas Bhagwandas Patel v. State of Gujarat (1976), a division bench of the Supreme Court reaffirmed that for an act to constitute bribery, it is sufficient for a public servant to accept illegal gratification. The Court does not need to consider whether the public servant intended to perform any act of favour or disfavour in an official capacity. It was on this ground that the court blurred the artificial distinction that was created by the 1998 judgment between those who receive bribes and perform the agreed task and those who receive the same bribe but do not carry out the agreed task. The offence of bribery is not contingent upon the performance of the agreed action and is complete on the exchange of illegal gratification. The 1998 judgment did not consider the aspect of when the offence of bribery crystallises. However, the majority opinion protected MPs who voted as agreed but did not apply to those who did not vote. This in a way erroneously links the offence of bribery to the performance of the act.
Basing its argument on the aforementioned grounds, the apex court ruled that bribery is not immune from prosecution merely because a vote was cast in the precincts of the house in furtherance of the direction of the alleged bribe-giver. Also, it is difficult to believe that the constitution framers envisaged giving immunity to lawmakers who accept bribes and vote in the agreed direction but punish those who, although, they agree to accept a bribe eventually decide not to vote or vote independently. Such an elucidation militates against the very idea of granting privilege to lawmakers.
Suggestion
Due to the paucity of time and the wide amplitude of privileges granted to British lawmakers, the Constituent Assembly decided not to take on the herculean task of defining parliamentary privileges upon itself and conferred Indian lawmakers the same privileges and immunity enjoyed by members of the House of Commons. It left the task of determining the privileges to the legislature. This provisional arrangement has extended beyond 74 years but no such law has been enacted by legislature to date. The author suggests that the time is now ripe for the parliament to enact a law defining the contours of parliamentary privileges. The inability or the lethargy of the legislators to codify the privileges stems from the notion that codification will bring the immunities under judicial scrutiny and the parliament fears losing its supreme authority.
Further, any such law has to be in consonance with and must not abridge the fundamental rights guaranteed under the Constitution. This paves the way for the confrontation of privileges with the fundamental rights of citizens. Also, the lawmakers believe that open-ended privileges provisions can be tweaked and twisted and used to their advantage as and when the need arises. The need for codification however also stems from a moral standpoint. The constitution envisages a limited government with supremacy of the constitution and not of parliament. Giving parliament unfettered power subserves the very idea of constitutional supremacy. So, until and unless a law is enacted, lawmakers will continue to seek a shield under the broad umbrella of parliamentary privileges for unethical and tainted practices.
Conclusion
By affirming that parliamentary privileges cannot act as a bulwark and cloak bribery under it, the judiciary has upheld the integrity of the democratic process and reinforced the principle of accountability. The Constitution advocates for integrity in public life, and the argument that lawmakers are not open to prosecution for bribery concerning their parliamentary vote undermines the rule of law, a fundamental principle of the Constitution. Also, excluding lawmakers accused of bribery from criminal prosecution under the guise of parliamentary privilege creates a troubling paradox. It suggests that lawmakers, who are entrusted by the public to enact stringent anti-corruption laws and curb the menace of bribery, are not subject to those same laws. With this judgment, the Houses of Parliament or Legislatures will no longer be islands that act as a shield for those inside it from the application of ordinary laws of the land.