The seven-judge bench verdict on Monday that said bribe-taking lawmakers have no immunity strikes a much-needed balance between parliamentary privilege and corruption charges.

The verdict defines parliamentary privilege and its boundaries , especially in relation to freedom of speech, the right to participate in proceedings of the House, and immunity from legal proceedings. Understanding the landmark judgment by the Constitution bench on Monday requires navigating the intriguing journey of the case and the contentious judgment that led the top court establish a judicial precedent that served as guidelines for future cases involving lawmakers.

The Narasimha Rao judgment in 1998 and the reference

This was the ruling overturned on Monday by the larger bench. The tenth Lok Sabha election, which took place in 1991, provided the case’s context. PV Narasimha Rao was appointed prime minister and the Congress emerged as the single largest party. In July 1993, a no confidence motion was brought against the government.

In a house of 528 MPs, the Congress was short by 14 from a simple majority. On July 26, 1993, the motion was put to vote, and the Narasimha Rao government sailed through by garnering 265 votes. Several MPs that voted against the motion of no-confidence were those who belonged to the Jharkhand Mukti Morcha (JMM) and the Janata Dal (Ajit) JD (A). Interestingly, Ajit Singh, a JD (A) MP, chose not to cast a vote.

A complaint was filed before the Central Bureau of Investigation (CBI) alleging that the Narasimha Rao government distributed over ₹3 crore as bribe to MPs of different political parties.

CBI took up the investigation under the Prevention of Corruption Act, 1988 against JMM chief Shibu Soren and three other party MPs for receiving bribes and voting against the no confidence motion. The investigating agency also filed a separate case against Rao and others for hatching a criminal conspiracy and paying bribes to MPs. Charge sheets were filed before a CBI court in Delhi where the accused MPs took the defence that the action by the court is barred by Article 105(2).

Article 105(2) states: “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.” The identical provision in respect of members of state legislatures is provided in Article 194(2). The CBI judge rejected the argument and even the Delhi HC put a stamp of approval on it by saying that the illegal acts of demanding and accepting bribe took place outside Parliament.

The appeal was brought to the Supreme Court where a Constitution bench of five judges determined two issues: One, does Article 105 confer any immunity on an MP from being prosecuted in an offence involving offer or acceptance of bribe and two, can MPs be regarded as” public servant” to bring them within the ambit of the 1988 Act because there is no authority competent to grant sanction for their prosecution?

The verdict that came on July 17, 1998, was not unanimous. While the judges agreed on the second issue that MPs are public servants, there was difference of opinion on whether Article 105 immunity is to be a shield for members of Parliament against criminal proceedings for bribery. The majority decision was given by justices SP Bharucha and S Rajendra Babu, and supported by a separate view by justice GN Ray. They held that the alleged bribe takers are entitled to immunity conferred by Article 105(2), holding that the words “in respect of” used in Article 105 should be given a broad meaning and the alleged conspiracy were “in respect of” votes cast.

Applying this rationale, the court curiously directed trial to proceed against Ajit Singh since he did not cast his vote on the no-confidence motion.

The majority said: “Protection under Article 105(2) is available only to those accused, who as members of Parliament cast their votes in Parliament.” The minority view comprised justices SC Agrawal and AS Anand.

Years later, in March 2012, the Election Commission of India (ECI) notified election to two vacant seats of the Rajya Sabha from Jharkhand. Sita Soren, the daughter-in-law of JMM patriarch Shibu Soren, was then a member of the Jharkhand legislative assembly. She was accused of accepting a bribe from an independent candidate in exchange for supporting him. However, it was clear from the open voting for the Rajya Sabha seat that she voted for a candidate from her own party rather than the alleged bribe-giver.

A PIL came to be filed before the Jharkhand HC, which directed the CBI to probe into the alleged exchange of money.

Before the trial court and the HC, Sita Soren claimed immunity against prosecution under Article 194(2), but to no avail. On being denied the protection, she approached the SC in 2014, banking on the 1998 ruling in Narasimha Rao case. In March 2019, a three-judge bench referred the matter to a five-judge bench, which in turn referred the issue to a seven-judge bench in September last year.

The seven-judge bench ruling

Noting precedents, historical development and international jurisprudence on parliamentary privileges, the top court on Monday declared that legislators cannot claim immunity in cases of corruption and bribery since they are not fundamentally related to their ability to perform their duties.

The court highlighted that the freedom of speech and the right to vote as an extension of it is a privilege essential to every legislative body because such privileges are not only essential to the ability of Parliament and its members to carry out their duties, but it is also at the core of the function of a democratic legislative institution.

“Freedom of speech in Parliament and the legislatures is an arm of the same aspiration so that members may express the grievances of their constituents, express diverse perspectives and ventilate the perspectives of their constituents. Freedom of speech in Parliament ensures that the government is held accountable by the House,” it said. At the same time, the court was categorical that the privileges to MPs and MLAs are not absolute or unqualified. “The privilege of an individual member only extends insofar as it aids the House to function and without which the House may not be able to carry out its functions collectively… We may understand parliamentary privileges as 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,” it noted.

According to the court, parliamentary privileges are not a mark of status which makes legislators stand on an unequal pedestal but are guaranteed freedoms necessary to be in furtherance of fertilising a deliberative, critical, and responsive democracy, adding it is for the legislator claiming a privilege against an action to satisfy that the privilege exists. The bench then said that an act of bribery cannot be immune under the doctrine of parliamentary privilege because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. Holding that courts and the House exercise parallel jurisdiction over allegations of bribery, the Constitution bench said that a member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote. “This action may bring indignity to the House of Parliament or Legislature and may also attract prosecution. What it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or legislature,” it added.

The bench further clarified that the offence of bribery is complete on the acceptance of the money or on the agreement to accept money being concluded, adding it is not contingent on the performance of the promise for which money is given or is agreed to be given.

Notably, the seven-judge bench ruling on Monday also displaced observations by another five-judge bench in the Kuldip Nayar case (2006), which said that elections to fill seats in the Rajya Sabha are not proceedings of the legislature but a mere exercise of franchise, which falls outside the net of parliamentary privilege under Article 194. In the 2006 judgment, the court was dealing with the use of open ballots in elections to the Rajya Sabha. The larger bench held that parliamentary privilege cannot be restricted to only law-making on the floor of the House but extends to other powers and responsibilities of elected members, which take place in the legislature or Parliament, even when the House is not sitting.

“The court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution…it is clarified that voting for elections to the Rajya Sabha falls within the ambit of Article 194(2). On all other counts, the decision of the Constitution bench in Kuldip Nayar (supra) remains good law,” it said.