New Delhi: The framers of the Constitution would not have intended to grant the legislature those rights, which may not serve any purpose for the proper functioning of the House, a seven-judge bench of the Supreme Court said Monday.
The Chief Justice of India D.Y. Chandrachud-led bench further overturned a more than two-decades old SC verdict that gave blanket immunity to lawmakers from criminal prosecution for an act committed inside the premises of Parliament or a state assembly.
In the 1998 P.V. Narasimha Rao case, the SC through a 3:2 verdict had condoned acceptance of bribes by sitting MPs/MLAs in lieu of speaking or voting inside the House, as it kept them out of the ambit of Prevention of Corruption Act (PCA). In this case, the top court held that immunity provided to lawmakers under Articles 105 and 194 of the Constitution would come into play in all situations.
The verdict had saved the JMM MPs, who took money to bail out the then government headed by Rao, from criminal prosecution.
The majority view held that the act of bribe-taking was a breach of parliamentary privileges and its contempt and that Parliament may proceed against both the alleged bribe-takers and bribe-givers. But, the top court did not grant protection to Ajit Singh, who took money but did not cast vote during the no-trust motion.
On Monday, the SC held that privileges accorded to a legislator “bear a functional relationship to the discharge of the functions”. Privileges are not an end in themselves, but must be exercised to ensure effective exercise of legislative functioning, it said.
This judgement was delivered on an appeal filed by Sita Soren, who was accused of accepting a bribe to vote for industrialist R.K. Agarwal in the Rajya Sabha election. Sita, the daughter-in-law of JMM founder Shibu Soren, faced criminal prosecution from the CBI. Her plea for immunity was rejected by the trial court as well as the Jharkhand High Court.
Monday’s ruling is likely to have bearing on TMC MP Mahua Moitra’s case. She was expelled from Parliament after the Ethics Committee indicted her for “unethical conduct”. Moitra was probed for allegedly sharing her login credentials and password with an unauthorised person and accepting “money, cash and other amenities” from businessman Darshan Hiranandani in lieu of asking questions to embarrass the Modi government.
In its 135-page verdict, the bench explored the trajectory of parliamentary privileges and noted that unlike the House of Commons in the UK, India does not have “ancient” and “undoubted privileges,” which were vested after a struggle between Parliament and the King during colonial rule.
Privileges enjoyed by members of the House individually are a means to ensure and facilitate the effective discharge of the collective functions of the House, without which it may not be able to carry out its functions collectively.
The privileges under the two Articles are of the widest amplitude, but to the extent that they serve for the aims for which they have been granted, which, the court held, has to be within the confines of the Constitution.
Lawmakers, it said, are subject to the same law that the law-making body enacts for the people it governs and claims to represent. It added Parliament or legislatures, and the committees under them, are not “islands which act as enclaves shielding those inside from the application of ordinary laws.”
Hence, members of the House or indeed the House itself cannot claim privileges which are not essentially related to functioning. The immunity privilege, the court concluded, is qualified by the fact that it must be attracted to speech or vote during the conduct of the business in the House.
A member engaging in bribery commits a crime which is unrelated to their ability to vote or make a decision on their vote, the bench held in the unanimous verdict, adding that this action may “bring indignity to the House and may also attract prosecution”.
The immunity, it said, protects freedom of speech in Parliament and legislatures.
“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 was neither the intention of Parliament nor the goal,” the court said, adding that bribery cannot be excluded from a court’s jurisdiction merely because it may be treated as contempt or breach of a House privilege.
The bench rejected the contention that it cannot reconsider the 1998 verdict, saying such an exercise can be undertaken as per earlier precedents of the top court. “There is a grave danger of this court allowing an error to be perpetuated if the decision were not reconsidered.”
Commenting on the majority view in the P.V. Narasimha Rao judgement, the apex court termed understanding of the law on privileges in the 1998 ruling as “overbroad” and “presumptive”.
The interpretation of the words in Article 105 in it cannot be interpreted in a “way that does violence to the object of the provision,” which is to further legislative functions, it held.
“Privileges are not an end in themselves in a parliamentary form of government as the majority has understood them to be. A member of Parliament or of the Legislature is immune in the performance of their functions in the House or a committee thereof from being prosecuted because the speech given or vote cast is functionally related to performance as members of the legislature.”
It opined that a speech made in Parliament or Legislature cannot be subjected to any proceedings before any court. However, other acts such as damaging property or criminal acts may be subjected to prosecution despite being within the precincts of the House.
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‘Delivery of results is irrelevant’
Noting that the majority view in the 1998 case did not delve into when the offence of bribery is complete, the seven-judge bench observed that the minority had discussed this aspect.
The judges accepted the minority view, which noted that the offence of bribery “is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver.”
The CJI-led bench discussed the PCA to hold that mere “obtaining”, “accepting” or “attempting” to obtain an undue advantage with the intention to act 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 as the offence of bribery “crystallizes on the exchange of the bribe and does not require the actual performance of the act,” the bench said.
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, it said.
Therefore, it concluded, the offence of bribery is “independent of the vote or speech” that are protected under the two Articles.
The remit of parliamentary privilege, it said, is “intricately linked to the nexus of the act to the vote or ‘speech’ and the transaction of parliamentary business,” and, hence, cannot include the act of accepting bribes.
As for the 1998 decision, the court said, it “erroneously links the offence of bribery to the performance of the act (vote or speech).”
Moreover, that verdict, it said, creates an artificial distinction between those who receive the “illegal gratification and perform their end of the bargain and those who receive the same illegal gratification but do not carry out the agreed task”.
The court’s comment was specifically pointed to the prosecution of Ajit Singh. The interpretation in it, the SC said, belies not only the text of Articles 105 and 194 but also the purpose of conferring parliamentary privilege on the members of legislature.
“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.”
Immunity to bribe-takers fails two-fold test
The bench tested the constitutional protection extended even to bribe-takers in the 1998 judgement on two counts — whether it is integral to the House’s healthy and essential functioning, and if it is necessary.
The privileges and immunities enshrined in the two Articles with respect to Houses of Parliament and the Legislatures, their members and committees, respectively belong to the House collectively. The history of parliamentary privileges disclose that House members cannot claim them, which are not essentially related to their functioning, the court opined.
“To give any privilege unconnected to the functioning of Parliament or Legislature by necessity is to create a class of citizens which enjoys unchecked exemption from ordinary application of the law. This was neither the intention of the Constitution nor the goal of vesting Parliament and Legislature with powers, privileges and immunities,” it held, reversing the view taken in the 1998 judgement.
Constitution envisions probity in public life
Discussing at length the objective behind Articles 105 and 194, the bench noted that it is to create a “fearless atmosphere” in which debate, deliberations and exchange of ideas can take place within Parliament and legislatures.
Freedom of elected legislators is a key component of deliberative democracy in which aspirations of people are met by discourse in democratic institutions. Hence, they have been guaranteed the freedom to speak and vote under the two Articles, it said.
For this exercise to be meaningful, such members must be free from fear or favour induced by a third party. They should be able to exercise their free will and conscience to enrich the functions of the House, it added.
This freedom is taken away when a member is “induced to vote” in a certain way. “Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy,” the bench said.
The top court took support of the anti-defection law to assert that prosecution of lawmakers on charges of corruption would not violate freedom of speech. Under the anti-defection law, it said, a political “sinful” act of “floor crossing is neither permissible nor immunized under the Constitution”.
“Parliament is called the grand inquest of the nation. Not only can the actions and legislative priorities of the government of the day be scrutinised and criticised to hold it accountable, but Parliament also acts as a forum for ventilating the grievances of individuals, civil society, and public stakeholders,” the court said.
“When the space for deliberation in the legislature shrinks, people resort to conversations and democratic actions outside the legislature. This privilege of the citizens to scrutinise the proceedings in Parliament is a concomitant right of a deliberative democracy which is a basic feature of the Constitution.”
Article 194 remit will include RS poll
The bench unanimously declared that the immunity extended under Article 194 would apply to the Rajya Sabha elections.
Elections to the Upper House are an integral part of the powers and responsibilities of elected members of Parliament and legislative assemblies. The vote for such elections is given in the legislature or Parliament, which would be sufficient to invoke the protection under the two Articles, it said.
This should be a free and fearless exercise of franchise by elected assembly members, which, the court said, is “necessary for the dignity and efficient functioning of the state legislative assembly.”
“The Rajya Sabha or the Council of States performs an integral function in the working of our democracy, and the role played by the Rajya Sabha constitutes a part of the basic structure of the Constitution.
“Therefore, the role played by elected members of the state legislative assemblies in electing members of the Rajya Sabha under Article 80 is significant and requires utmost protection to ensure that the vote is exercised freely and without fear of legal persecution,” it declared.
(Edited by Tony Rai)
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