2141

IN THE

LEARNED HIGH COURT OF JHARKHAND, INDIA

IN THE MATTERS OF

SITA SOREN……………………………………………PETITIONER

v.

UNION OF INDIA,THROUGH CBI

………………………………………RESPONDENT

[UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, 1950]

ON BEHALF OF THE PETIONER

 TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................................iii

STATEMENT OF JURISDICTION ............................................................................................ iv

STATEMENT OF FACTS ............................................................................................................ v

ISSUES FOR CONSIDERATION .............................................................................................. vii

SUMMARY OF ARGUMENTS ................................................................................................viii

I. Article 105(2) and article 194(2) of the constitution confers immunity on the members of
parliament from being prosected in a criminal court for an offence involving offer or
acceptance of bribe. ................................................................................................................viii

II. Courts do not have the jurisdiction to decide the content and scope of the power,
privileges and immunities of the legislature and its members. ..............................................viii

ARGUMENTS ADVANCED ....................................................................................................... 1

I. Article 105(2) and article 194(2) of the constitution confers immunity on the members of
parliament from being prosected in a criminal court for an offence involving offer or
acceptance of bribe. ................................................................................................................... 1

A. Whether a legislator who accepts a bribe to vote in a certain manner and does not vote
in that manner, enjoys parliamentary immunity from prosecution or not? ........................... 1

I. Courts do not have the jurisdiction to decide the content and scope of the power, privileges
and immunities of the legislature and its members. .................................................................. 5

PRAYER FOR RELIEF ................................................................................................................ 8

ii
 INDEX OF AUTHORITIES

Cases

BRADLAUGH v. GOSSETT., [L.R.] 12 Q.B.D. 27 .................................................................... 6

CHURCH OF SCIENTOLOGY OF CALIFORNIA v. JOHNSON-SMITH, [1971] 3 WLR 43 6
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 .................................................... 2, 7
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 18 ................................................. 5
Sita Soren v. Union of India, 2014 SCC OnLine Jhar 302............................................................ 1
State of Karnataka v. union of India, (1977) 4 SCC 60 ................................................................ 4
Stockdale v. Hansard (1839) 9 Ad & El 1 : 8 LjQB 29................................................................. 6
Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 27 .................................................................. 5
Tenney v. Brandhove, 1951 SCC OnLine US SC 6 .................................................................. 6, 7

Other authorities

https://frontline.thehindu.com/the-nation/article30161305.ece ..................................................... 2
https://indconlawphil.wordpress.com/2020/07/01/guest-post-reconsidering-p-v-narasimha-rao-
v-state-bribery-parliamentary-votes-and-parliamentary-immunity ........................................... 2

iii
 STATEMENT OF JURISDICTION

The Petitioner most humbly submits that this Learned High Court of Jharkhand has the
jurisdiction to hear the present matters of Sita Soren v. Union of India.

Under Article 226 of the Constitution of India

All of which is urged in detail in the written submission and is submitted most respectfully.

iv
 STATEMENT OF FACTS

1. The present case is about the incessant tussle between the CBI and the petitioner, Sita
Soren who’s the member of the Legislative Assembly.

2. Article 194(2)- No member of the Legislature of a State shall be liable to any proceedings
in any court in respect of anything said or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in respect of the publication by or under the
authority of a House of such a Legislature of any report, paper, votes or proceedings.

3. One issue is with reference to the article 105 and Article 194 grant privileges or
advantages to the members of the parliament so that they can perform their duties or can
function properly without any hindrances. Such privileges are granted as they are needed for
democratic functioning. These powers, privileges and immunities should be defined by the law
from time-to-time. These privileges are considered as special provisions and have an overriding
effect in conflict.

4. two Members of the Parliament, namely, Babu Lal Marandi and Dr. Ajay Kumar,
lodged a complaint on 27/03/2012, before the Chief Election Commissioner of India, alleging
therein that there is every possibility of the process of election being influenced by the money
power as some of the Members have indulged themselves in Horse Trading. On getting this
complaint, the Election Commission of India, on 27/03/2012, alarmed all the departments
including the Income Tax Department to check the menace of Horse Trading and use of money
power.

5. . After completion of the investigation, charge sheet was submitted against number of
accused persons, including this petitioner on the charge that the petitioner did receive illegal
gratification of Rs. 50 lakhs from R.K. Agarwal for proposing his nomination and also Rs. 1
crore for voting in his favour, but the petitioner never voted in favour of Agarwal. On
submission of the charge sheet, the Court took cognizance of the offences punishable under
Sections 120B and 171 (E) of the Indian Penal Code and also under Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act against the petitioner and others vide
order dated 07/06/2013, which is under challenge.

6. Learned senior counsel appearing for the petitioner submits that notwithstanding the fact
that the petitioner has been charged to have received bribe for casting vote in favour of R.K.
Agarwal, she cannot be prosecuted criminally as the provision contained in Section 194(2) of
the Constitution of India confers immunity upon a person from proceeding in any court in
v
respect of vote given by him in the Legislature and, as such, any prosecution of the petitioner
is against the mandate of the Constitution and, thereby, the order taking cognizance is fit to be
quashed.

7. Also, in this respect, learned senior counsel submits that the point involved in this case,
has no longer remained res integra on account of authoritative judgment rendered by the
Hon'ble Supreme Court in a case of "P.V. Narsimha Rao- versus- State where number of
Members of the Lok Sabha had been alleged to have been bribed for voting against the no-
confidence motion.

8. Therefore, by insertion of Article 194(2) and Article 105 in the Indian constitution gave
special rights to MLAs and MPs which lead to an ongoing friction between
MLAS/MPs and CBI.

Hence, the present matter before this Honourable Court.

vi
 ISSUES FOR CONSIDERATION

I. WHETHER ARTICLE 105(2) AND ARTICLE 194(2) OF THE CONSTITUTION CONFERS ANY

IMMUNITY ON THE MEMBERS OF PARLIAMENT FOR BEING PROSECUTED IN A CRIMINAL COURT FOR

AN OFFENCE INVOLVING OFFER OR ACCEPTANCE OF BRIBE?

II. WHETHER COURTS, WITHIN THE CONSTITUTIONAL SCHEME, HAVE THE JURISDICTION TO

DECIDE THE CONTENT AND SCOPE OF POWER, PRIVILEGES, AND IMMUNITIES OF THE LEGISLATURE

AND ITS MEMBERS OR NOT?

vii
 SUMMARY OF ARGUMENTS

I. Article 105(2) and article 194(2) of the constitution confers immunity on the
members of parliament from being prosected in a criminal court for an offence
involving offer or acceptance of bribe.

The participation of MLAs in voting is mere execution of their parliamentary functions hence
is not subject to any kind of court proceeding as per the immunity granted by article 194 and
105.

II. Courts do not have the jurisdiction to decide the content and scope of the power,
privileges and immunities of the legislature and its members.

The power to resolve any issue regarding the functioning of legislature is constitutionally
grated to parliamentary committee and the speaker. When the house is sitting, anything said
and any vote cast in house is immune from proceeding in any court.

viii
 ARGUMENTS ADVANCED

I. Article 105(2) and article 194(2) of the constitution confers immunity on the
members of parliament from being prosected in a criminal court for an offence
involving offer or acceptance of bribe.

The petitioner can not be charged to have received bribe for casting vote in favour or against
R.K. Agarwal, she cannot be criminally prosecuted as the provision contained in section 194(2)
, Constitution of India confers immunity upon a person from proceeding in any court in respect
of vote given by him in legislature and as such any prosecution of the petitioner is against the
mandate of the Constitution and thereby, the order taking cognizance is fit to be quashed.

As article 105 (2) and 194(2) clearly states that,

Article 105(2) in The Constitution Of India 1949

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

Article 194(2) in The Constitution Of India 1949

“No member of the Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any committee thereof,
and no person shall be so liable in respect of the publication by or under the authority of a
House of such a Legislature of any report, paper, votes or proceedings”

A. Whether a legislator who accepts a bribe to vote in a certain manner and does not vote
in that manner, enjoys parliamentary immunity from prosecution or not?

In this respect, counsel submits that the point involved in this case has no longer remained
res integra 1on account of authoritative judgement rendered by the hon’ble Supreme Court

1
Sita Soren v. Union of India, 2014 SCC OnLine Jhar 302
1
in a case of P.V. Narsimha Rao vs State (CBI-SPE) [1998 (4) SCC 6262], the Hon’ble High
Court has failed to appreciate the width of immunity given under Article 194(2) of the
Constitution of India to the member of Legislature of a State in respect of vote given in the
Legislature. The immunity provided under section 194(2) of the Constitution of India to the
member of legislature of a State is available to the petitioner (a M.L.A.) in connection with
casting vote in the legislature for election of Rajya Sabha3.

Here, we would kindly distinguish our case from the one in P.V. Narsimha rao judgement.
As the petitioner here has not cast the vote in the favour of the bribe giver, ambit of article
194 is wide enough to cover both of them.

Whether or not the member has cast the vote in relation to the bribe taken is of no matter, the
minority bench consist of S.C. Agrawal and A.S. Anand said there is no relevance of the fact
that if the vote has been cast in favour or against the bribe giver.4

If the members who cast the vote in favour of that person is immune from any proceeding in
court and enjoyed the protection of article 105 , the members who did not do so must also
enjoy the same immunity.

Because the issue of immunity conferred upon a member from proceeding in any court in
respect of vote given by him in legislature is no longer res integra and the Constitution Bench
of this Hon’ble Court in P.V. Narsimha Rao vs State (CBI-SPE) [1998 (4) SCC 626]5 has
held that anything concerning or relating or connecting or having nexus with giving vote is
protected. Broadly interpreted, as we think it should be, Article 105(2) protects a Member of
Parliament against proceedings in court that relate to, or concern, or have a connection or
nexus with anything said, or a vote given, by him in Parliament.

The object of the protection, is to enable Members to speak their mind in Parliament and
vote in the same way, freed of the fear of being made answerable on that account in a court
of law. It is not enough that Members should be protected against civil action and criminal
proceedings, the cause of action of which is their speech or their vote. To enable Members
to participate fearlessly in parliamentary debates, Members need the wider protection of

2
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
3
https://indconlawphil.wordpress.com/2020/07/01/guest-post-reconsidering-p-v-narasimha-rao-v-state-
bribery-parliamentary-votes-and-parliamentary-immunity/
4
https://frontline.thehindu.com/the-nation/article30161305.ece
5
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
2
immunity against all civil and criminal proceedings that bear a nexus to their speech or vote.
It is for that reason that a Member is not “liable to any proceedings in any court in respect of
anything said or any vote given by him”.

The then Their Lordship Hon'ble Mr. Justice S.C. Agrawal for himself and also for Hon'ble
Mr. Justice Anand (minority view) did hold that the immunity from prosecution of a
Member, cannot be extended for having received bribe or having entered into a conspiracy
to receive bribe for the purpose of giving a vote in the House, whereas the majority view was
that anything done, which had nexus with the vote will not make him liable to be proceeded
in the Court of law as provision under Article 105(2) gives complete immunity to those
persons. Further, it was submitted that since Article 194(2) is in parameteria of the provision
as contained in Article 105(2), the same would be the fall out in view of the decision of the
Constitution Bench and, thereby, the instant prosecution can be said to be against the
mandate of the constitutional provision and, hence, order taking cognizance is fit to be
quashed.

Court in P.V. Narsimha Rao vs State (CBI-SPE) [1998 (4) SCC 626] by majority has further
held . While it is true that the charge against them does not refer to the votes that the alleged
bribe-takers, Ajit Singh excluded, actually cast against the no-confidence motion and that it
may be established dehors those votes, as the Attorney General argued, we do not think that
we can ignore the fact that the votes were cast and, if the facts alleged against the bribe-
takers are true, that they were cast pursuant to the alleged conspiracy and agreement. It must
then follow, given that the expression “in respect of” must receive a broad meaning, that the
alleged conspiracy and agreement had a nexus to and were in respect of those votes and that
the proposed inquiry in the criminal proceedings is in regard to the motivation thereof. 143.
Our conclusion is that the alleged bribe-takers, other than Ajit Singh, have the protection of
Article 105(2) and are not answerable in a court of law for the alleged conspiracy and
agreement. The charges against them must fail. Ajit Singh, not having cast a vote on the no-
confidence motion, derives no immunity from Article 105(2). F. Because the Hon’ble High
Court gravely erred in not extending the benefit of judgment of P.V. Narsimha Rao vs State
(CBISPE) (supra) to the petitioner and erred in equating the case of the petitioner with that
of Ajit Singh’s case P.V. Narsimha Rao vs State (CBI-SPE) (supra). G. Because the Hon’ble
High Court gravely erred in not appreciating that the petitioner’s case is totally different from
the case of Ajit Singh in P.V. Narsimha Rao vs State (CBISPE) (supra) and cannot be equated

3
 to the case of Ajit Singh’s as herein the petitioner casted her vote but Ajit Singh did not cast
his vote at all in P.V. Narsimha Rao vs State (CBI-SPE) (supra). And therefore the
petitioner’s act of casting vote in legislature is protected under Article 194 (2) of the
Constitution of India. H. Thus, the Hon’ble High Court gravely erred in interpreting the
Judgment of the Constitution Bench of this Hon’ble Court in P.V. Narsimha Rao vs State
(CBI-SPE) [1998 (4) SCC 626]. The case of the petitioner is squarely covered by the
judgment of this Hon’ble Court and the petitioner is entitled for the immunity as provided in
Article 194(2) of the Constitution of India and therefore, the impugned judgment is liable to
set aside and order taking cognizance against the petitioner be quashed. I. Because the
impugned judgment is bad in eyes of law and is liable to be set aside.

On the issue of privilege

The privilege issue arises out of the investigation taken place by CBI , as they have ignored the
fact that the wordings of Article 194(3) are unambiguous and clear, and thus do not require the
supreme court to give its own twist or interpretation to them. These are not wordings of a statute
but that of the primary document, that is our constitution. The power, privileges, and
immunities of a house of the state legislature as well as its committees have been clearly defined
as those of the house and all members and committees thereof before the coming into force of
section 26 of the Constitution 44th Amendment Act,1978. There was no timeline provided for
codification of powers, privileges and immunities of a house . The constitution has given
leeway to the legislature to define the same from time to time , but there was no compulsion
qua the same. If the legislature in its wisdom is of opinion that it need to be so done, they will
do so, relied on State of Karnataka v. union of India6

Conclusively, section 2 of article 194 protects the members of legislature from any such
proceedings on the grounds of those members are performing functions of the state

6
State of Karnataka v. union of India, (1977) 4 SCC 608
4
I. Courts do not have the jurisdiction to decide the content and scope of the power,
privileges and immunities of the legislature and its members.

As clarified in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184 7 The
parliamentary privilege was introduced to prevent any undue interference in the working
of parliament and thereby enable the members of parliament to function effectivey and
efficiently without unreasonable impediment. Till date, parliamentary privilege remains an
important feature in any parliamentary democracy. Conceptually parliamentary privilege
protects the MPs and sustains legislative functionalism and said protection is absolute.

The Hon’ble High Court gravely erred in considering as to whether the petitioner had voted
in favour of the person from whom she had allegedly taken money or not. Whereas the
protection would inure to her once she has voted in the house. It is respectfully submitted
that anything done in connection to vote cannot be enquired into by any Court and
whether the petitioner has voted to the person from whom allegedly she had taken money
is also a matter relating to casting of vote and thus will squarely be covered by Article
194(2) of the Constitution as well as by the judgment of the Constitution Bench of this
Hon’ble Court in P.V. Narsimha Rao vs State (CBI-SPE) [1998 (4) SCC 626].

The courts have no say in the matter and should really have none, the position was
established the case of Tej Kiran Jain v. N. Sanjiva Reddy 8 it was contended that the
immunity granted by Article 105(2) was with reference to the business of Parliament and
not in regard to something which was something utterly irrelevant. This Court said:

"The article means what it says in language which could not be plainer. The article confers
immunity inter alia in respect of 'anything said ... in Parliament'.

The word 'anything' is of the widest import and is equivalent to 'everything'. The only
limitation arises from the words 'in Parliament' which means during the sitting of parliament
and in course of the course of the business of Parliament. We are concerned only with
speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was
being transacted, anything said during the course of that business was immune from
proceedings in any court. This immunity is not only complete but is as it should be.

7
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184
8
Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272
5
 It is of the essence of parliamentary system of Government that people's representatives
should be free to express themselves without fear of legal consequences. What they say is
only subject to the discipline of the rules of Parliament, the good sense of the Members and
the control of proceedings by the speaker.

The English authority can be drawn from the case of BRADLAUGH v. GOSSETT., [L.R.]
12 Q.B.D. 2719 where suit to restrain Bradlaugh from carrying out resolution was dismissed
and Lord Coleridge said : What is said or done within the walls of Parliament cannot be
inquired into in the court of law the jurisdiction of the houses over their own members ,
their right to impose discipline within their walls is absolute and exclusive.

Lord Ellenborough said “ They would sink into utter contempt and inefficiency without it”

The houses of parliament cannot act by themselves they must act by officers, house of
commons had the right to decide on the subject matter and have ordered their officers to
give effect to their decision. They are protected by their decision , if injustice has been
done, it is injustice for which the courts have noremedy. The case of Stockdale v. Hansard10
re affirms the same.

As held in the case of Church of Scientology of california v. Johnson-smith[1971] 3 WLR

434 11 Only parliament can decide what conduct constitutes a breach of privilege or a
contempt of parliament. In the case that are adjudged to be cotempts the house may exercise
its penal jurisdiction to punish offenders.

Justice Frankfurter in Tenney v Brandhove 12said, although bribery as a dishonest motive can
be attributed to parliamentarians, the appropriate remedy for the same is self-regulation by the
legislature (censure or expelling), and by the electorate (recall or voting out). Justice Brennan
concluded that parliamentary immunity did not ‘immunize corrupt’ legislators. Instead, it
reserved disciplinary powers to the legislature. The judiciary assuming those powers itself, and
granting authorisation to the executive to conduct investigation and prosecution, would not be
appropriate.

9
BRADLAUGH v. GOSSETT., [L.R.] 12 Q.B.D. 271
10
Stockdale v. Hansard (1839) 9 Ad & El 1 : 8 LjQB 294
11
CHURCH OF SCIENTOLOGY OF CALIFORNIA v. JOHNSON-SMITH, [1971] 3 WLR 434
12
Tenney v. Brandhove, 1951 SCC OnLine US SC 60
6
Justice G. N. Ray, who provided the determinative vote in P.V. Narasimha Rao13, used similar
reasoning: an effective parliamentary democracy, in his opinion, required that parliamentarians
cast votes without any fear. Similarly, Justice S. P. Bharucha, for himself and Justice Rajendra
Babu, quoted the aforesaid paragraph from Tenney v Brandhove 14 to substantiate their
determination.
This view of parliamentary immunity does not condone bribery or deem it as unworthy of
parliamentary representatives, but rather argues that it is the legislature or the voters that pass
a judgment on a representative accused of bribery rather than the courts. Enabling prosecution
of parliamentary representatives for acts in relation of their votes may lead to intrusion by the
executive into the representatives’ parliamentary business for criminal investigation. This
investigation may very well be extended to any and all statements made or votes cast in the
legislature, by merely accusing an extension of criminal and corrupt motivations. This is
adequate to threaten the atmosphere of freedom that is to be ensured through parliamentary
immunity.

13
P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
14
Tenney v. Brandhove, 1951 SCC OnLine US SC 60
7
 PRAYER FOR RELIEF

Wherefore, in the light of facts stated, issues raised, arguments advanced, and authorities cited,
it is most humbly and respectfully prayed before this Honourable High Court of Delhi, that it
may be pleased to declare that –

1. The Court may quash the entire proceeding against the petitioner on the grounds of
bribery.
2. Dismiss the chargesheet bearing No. 04/2013 dated 07.06.2013.

And further, grant any other relief or pass any order in favour of the Petitioner, which this
Honourable Court may deem fit in the ends of justice and good conscience.

All of which is most humbly and respectfully submitted before this Court.

Date: 25th January, 2023 Counsel No. 2140

Place: Delhi (Counsel for Petitioner)