A judgment of the Court held that lawmakers don’t enjoy immunity for bribery, thus overturning an earlier decision which held that they need immunity against all civil and criminal proceedings that bear a nexus to their speech or vote
By Prof Upendra Baxi
Strange though it may sound to some democratic and constitutional ears, the major question after 75 years of our Republic was recently posed by the Supreme Court of India (SCI): “Would a legislator who receives a bribe to cast a vote in a certain direction speak about certain issues be protected by parliamentary privilege?”
The controversy arose in 2012 when Sita Soren, a member of the Jharkhand Legislative Assembly from the Jharkhand Mukti Morcha (JMM), was accused of accepting a bribe from an independent candidate who had allegedly asked her to cast a vote in his favour in the Rajya Sabha elections. However, as there was an open ballot system, she ultimately cast her vote for a candidate of the JMM. Soren approached the High Court of Jharkhand seeking to quash the criminal charges filed against her under the Prevention of Corruption Act, 1988, pleading protection under the 1998 Narasimha Rao case.
At the outset, we may note the issue of delayed consideration in disposing this matter from September 23, 2014, to March 4, 2024. A two-judge Bench considered the matter on September 23, 2014, as one involving “substantial and of general public importance” and ordered that it must be placed before a larger bench of three judges. Nearly five years later, this was done on March 7, 2019, when a bench of three judges took the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench.
Again, on September 20, 2023, a five-judge bench of this Court proceeded to record prima facie reasons for doubting the correctness of the decision in the PV Narasimha Rao case and referred the matter to a larger bench of seven judges on the ground that the privileges do not “prima facie appear to render immunity from the launch of criminal proceedings for a violation of the criminal law which may arise independently of the exercise of the rights and duties as a Member of Parliament or of the legislature of a state”. The SCI only now amplifies the grounds in its present discourse and order (referred to by paragraph numbers).
Is it not extraordinary that even when a substantial question of law was involved on the first occasion on March 7, 2019, it was determined to seven judges only on September 23, 2023, and a final decision should be rendered a year later? Even mindful of the burdens on the Court, something more should be done to accelerate the movement of matters of substantial questions of law; surely, the referral processes should themselves need to be ameliorated, if necessary, by the recommendation of a sub-committee of the Collegium which the Master of Rolls should bear fully in view when scheduling the hearing and disposal of cases.
Although the theory of interests was well developed by Dean Roscoe Pound (and amplified by Professor Julius Stone from last mid-century) saying that all law but particularly adjudication represents a conflict of interests to be settled for the time being with least cost, friction and waste, it was not at all deployed here. What the SCI accomplished here (as it does in almost all cases) was adjusted two conflicting social interests: the social interest in free speech and expression of legislative immunity and the social interest in the prevention of bribery and corruption. Before they came to the task of balancing and weighing these interests, they had to adjust the social interest in stare decisis versus the social interest in planned legal change in the meaning and value of the text and context.
In this second conflict, Chief Justice Dr DY Chandrachud (who wrote a unanimous opinion for the Court comprising Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra) had just to evoke the observation of Mr Justice HR Khanna in Maganlal Chhaganlal (P) Ltd. vs Municipal Corpn. of Greater Bombay, 1974, that the Court must “keep the balance between the need of certainty and continuity and the desirability of growth and development of law”. Judicial pronouncements cannot “allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles”. On the one hand, there was the “need to ensure that judicial inventiveness shall not be desiccated or stunted”; on the other, the need also to “curb the temptation to lay down new and novel principles” coupled with the “readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time….” [Para 31]. Put another way, in the famous words of Roscoe Pound: “Law may be stable, but it should never stand still.”
Note that the decision to overrule a past precedent is never lightly made; a host of factors has to be fully considered. These include consideration of: “the detriment of the general public”, the “manifestly wrong or erroneous” or “public interest” inconsistency with the legal philosophy of the Constitution”, to “remedy continued injustice”, or address issues concerning vast changes the hermeneutic and social “contexts” (‘dissonance’) that make past precedents “unworkable” or “contrary to well-established principles” [this checklist is made from Paras 22-39].
Having dealt adroitly thus with the threshold issue of precedents, CJI Chandrachud explores the substance of the legislative immunity. This erudite discourse explores both colonial history and developments in the Anglo-American orbit. It is well to recall that before the seven judge Bench, there were the views of Justice SP Bharucha in the Narasimha Rao case who had held the privilege of the legislator as near absolute: “The object of the protection under Article 105(2) is to enable MPs to speak and vote freely in Parliament, without the fear of being made answerable on that account in a court of law” and it is “not enough that MPs should be protected against proceedings where the cause of action is their speech or vote. To enable them to participate freely in parliamentary debates, MPs need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is not difficult to envisage an MP who has made a speech or cast a vote that is not to the ‘liking of the powers that be’ being troubled by legal prosecution alleging that he had been paid a bribe to achieve a certain result in Parliament” [Para 12, for himself and S Rajendra Babu, J], However, those “who have conspired with the MP in the commission of that offence have no such immunity”. The “bribe-givers can, therefore, be prosecuted and do not have the protection of Article 105(2)”.
Justice SC Agarwal finds this in his dissenting opinion as “a paradoxical situation” because an “MP would be liable to be prosecuted for bribery if he accepted a bribe for not speaking or not giving his vote on a matter, but he would enjoy immunity if he accepted the bribe for speaking or giving his vote in a particular way and actually speaks or gives his vote in that manner. It is unlikely that the framers of the Constitution intended to make such a distinction”. He added: “The offence of criminal conspiracy is made out on the conclusion of an agreement to commit the offence of bribery and the performance of the act pursuant to the agreement is not of any consequence. Similarly, the act of acceptance of a bribe for speaking or giving a vote against the motion arises independently of the making of the speech or giving of the vote by the MP. Hence, liability for the offence cannot be treated as in respect of anything said or any vote given in Parliament.” [Paras 13:2, 13:4, respectively].
The Court largely follows this dissent and upholds the understanding that “parliamentary privileges” are those “rights and immunities which allow the orderly, democratic, and smooth functioning of Parliament and without which the essential functioning of the House would be violated” and are conferred so that “members of the House be able to attend the House and thereafter speak their minds without fear of being harassed by the executive or any other person or body on the basis of their actions as members of the House in the exercise of their duties” [Para 79] lest the legislators and “legislatures lose the essence of their representative character in a democratic polity”. [Para 81].
From these premises, it is natural to hold that “The Houses of Parliament or Legislatures, and the committees are not islands which act as enclaves shielding those inside from the application of ordinary laws. The lawmakers are subject to the same law that the law-making body represents”; henceforth, the assertion of a privilege by an individual member of Parliament or Legislature would be governed by a twofold test. First, “the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator enacts for the people it governs and claims to represent” [ Para 90].
While we may all welcome the judgment in principle, different views greet the outcome. Some political commentators and public intellectuals do not regard this as system-changing. But it should be noted that almost all political parties have welcomed the judgment.*
To be sure, any reductive reading of the decision denudes it of all juristic significance. However, the judgment installs, almost irreversibly, basic constitutional limits to the principle of deference to legislative autonomy. It also moves us towards horizontal equality of all citizens in the arena of criminal justice administration. It further articulates normative wherewithal for hermeneutic adjudicatory leadership. In the overall juristic and socio-political contexts, the judgment pointedly rearticulates the enduring faith in the Constitution of India.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
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*According to The Hindu (March 4, 2024): “Minutes after the judgment was delivered, Prime Minister Narendra Modi posted on X (formerly Twitter): “SWAGATAM! [welcome] A great judgment by the Hon’ble Supreme Court which will ensure clean politics and deepen people’s faith in the system.” Congress spokesperson Abhishek Manu Singhvi also welcomed the judgment, stating that this had been “a long-pending issue for many years to correct a purely legal issue”, which cannot be the law on the text of the Constitution. CPI(M) general secretary Sitaram Yechury termed the judgment “historic” and connected it to “horse trading and toppling of governments through pecuniary appeals to legislators”.