Constitution Law-II

Case Name : Sita Soren vs Union of Indian 2014

NAME : Bhale Dnyaneshwar Pralhad

Class : LL.B – First Year

Division : B
Roll No : 6152
Contact Number: 9158498086
Mail Id: bhaled3@gmail.com
 Constitution Law-II
Introduction

Parliamentary privilege, enshrined in Articles 105 and 194 of the Constitution, plays a crucial
and integral role to deliberative democracy in facilitating the functioning of a parliamentary form of
governance. It ensures that elected representatives in the parliament or state legislature in whom
citizens repose their faith can express their views and opinions on the floor of the House without ‘fear
or favour’. With the protection of parliamentary privilege, a legislator belonging to a political party
without any hesitation can vote on any motion; a legislator from a remote region of the country can
address issues that impact their constituency without the fear of being harassed by legal
consequences also they can demand accountability without any threat of defamation

Clause (2) of the Article 105 reads as follows “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”

Clause (2) of the article 194 provides identical protection to members of state assemblies

Would a legislator who receives a bribe to cast a vote in a certain direction or speak about
certain issues be protected by parliamentary privilege? It is this question of constitutional
interpretation that this Court is called upon to decide. This case travelled from single judge to the
seven judge constitutional bench headed by CJI DY Chandrachud. The judgement of PV Narsimha Rao
1998 was called in question which has now been unanimously been overruled by the apex court.

In its crucial verdict a landmark judgment of the honourable Supreme court of the India
delivered on 4 March 2024 by a 7 judge’s constitutional bench, the Supreme court categorically ruled
that no kind of immunity is enjoyed by any parliamentarian when it comes to taking bribe for giving a
vote in parliament in the house. Supreme court opined that asking questions and voting in parliament
after taking bribe for the same is poison / veil for parliamentary democracy. It has now been clarified
that if any parliamentarian or state legislator taking bribe for asking questions in the house or vote in
Rajya Sabha election then such person shall not get any protection under article 105 and 194 of the
Constitution of India and that such shall be tried for corruption charges of bribery

Statement of Facts

The Criminal Appeal arises from a judgment dated 17 February 2014 of the High Court of
Jharkhand. An election was held on 30 March 2012 to elect two members of the Rajya Sabha
representing the State of Jharkhand. Sita Soren, belonging to the Jharkhand Mukti Morcha, was a
member of the Legislative Assembly of Jharkhand. Sita Soren asked the High Court of Jharkhand to
provided legal immunity under 194(2) of Constitution of India, as an allegation was made against Sita
Soren of accepting a bribe from an independent candidate for casting her vote in his favour in election
to Rajya Sabha membership. However, she did not cast her vote in favour of the alleged bribe giver
and instead cast her vote in favour of a candidate belonging to her own party. However, election in
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question was annulled and a fresh election was held where Sita Soren again voted in favour of the
candidate from her own party

Criminal proceedings were instituted against Sita Soren and chargesheet was filed, aggrieved
from this she moved the High Court to quash the chargesheet and the criminal proceedings instituted
against her and asking for legal immunity under 192(2) of the Constitution of India. She claimed this
legal protection under Article 194(2) of the Constitution while relying on the judgment of the
Constitution bench of apex Court in PV Narasimha Rao v. State (CBI/SPE). The High Court declined to
quash the criminal proceedings on the ground that the Sita Soren had not cast her vote in favour of
the alleged bribe giver and thus, is not entitled to the protection under Article 194(2).

Now Sita Soren moved the Supreme Court for providing her with the legal immunity against
charges framed against her on account of bribery.

On 23 September 2014, a bench of two judges of this Court, before which the appeal was
placed, opined that since the issue arising for consideration is “substantial and of general public
importance”, it must be placed before a larger bench of three judges of this court.

On 7 March 2019, a bench of three judges headed by the then CJI Ranjan Gogai, which heard
the appeal observed that the precise question was dealt with in a judgment of a five-judge bench in
PV Narasimha Rao. The bench refereed the matter to larger bench with a 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”

Finally, by an order dated 20 September 2023, a five-judge bench headed by CJI D.Y.
Chandrachud recorded prima facie reasons doubting the correctness of the decision in PV Narasimha
Rao and referred the matter to a larger bench of seven judges comprising Dr Dhananjaya Y
Chandrachud, A.S. Bopanna, M.M. Sundresh, Pamidighantam Sri Narasimha, J.B. Pardiwala, Sanjay
Kumar, Manoj Misra.

Overview of the judgement of PV Narasimha Rao

Congress (I) emerged as the single largest party in the 1991 Lok Sabha ( 10 th ) general elections
and formed a minority government with Mr PV Narasimha Rao as the Prime Minister. A motion of no-
confidence was moved in the Lok Sabha against the government. The motion was defeated with 251
members in support and 265 members voting against the motion. A complaint was filed before the
Central Bureau of Investigation alleging that a criminal conspiracy was devised by which the members
belonging to the JMM and the JD (AS) entered into an agreement and received bribes to vote against
the no-confidence motion. It was alleged that PV Narasimha Rao and several other MPs were parties
to the criminal conspiracy and passed on “several lakhs of rupees” to the alleged bribe-takers to
defeat the no-confidence motion.

Two major questions came up for consideration before the Court

 Constitution Law-II
- Whether by virtue of Article 105 of the Constitution, an MP can claim immunity from
prosecution on a charge of bribery in a criminal court.
- Whether an MP falls within the purview of the Prevention of Corruption Act, 1988, and who
is designated as the sanctioning authority for the prosecution of an MP under the PC Act.

Justice Bharucha held that alleged bribe-takers are entitled to immunity under Article 105(2)
as the alleged conspiracy and acceptance of the bribe was “in respect of” the vote against the
noconfidence motion. The stated object of the alleged conspiracy and agreement was to defeat the
noconfidence motion and the alleged bribe-takers received the bribe as a “motive or reward for
defeating” it. The nexus between the alleged conspiracy, the bribe and the no-confidence motion was
explicit. 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. 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. The immunity under Article 105(2) is operative only insofar as it pertains
to what has been said or voted. Therefore, Ajit Singh, the MP who abstained from voting, was not
protected by immunity and the prosecution against him would proceed. Article 105(2) merely
provides that an MP shall not be answerable in a court of law for something that has a nexus to his
speech or vote in Parliament. 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)

On the other hand, SC Agarwal, J held that neither the alleged bribe-takers nor the alleged
bribe-givers enjoyed the protection of Article 105(2). An MP does not enjoy immunity under Article
105(2) from being prosecuted for an offence involving the offer or acceptance of a bribe for speaking
or giving his vote in parliament or any committee

Issues of the case

1. That overruling of the long-settled law in PV Narasimha Rao (supra) is unwarranted
2. Would a legislator who receives a bribe to cast a vote in a certain direction or speak about
certain issues be protected by parliamentary privilege?
3. Constitutional interpretation that this Court is called upon to decide

Submission made in the case

• Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant,
• Mr R Venkataramani, Attorney General for India,
• Mr Tushar Mehta, Solicitor General of India,
• Mr PS Patwalia, senior counsel, amicus curiae,
• Mr Gopal Sankarnarayanan, senior counsel and Mr Vijay Hansaria, senior counsel, appearing on
behalf of intervenors
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Mr. Raju Ramachandran, submitted that the judgment of the majority in PV Narasimha Rao
is applicable to the present case. Further, he argued that the majority judgment is well-reasoned and
there are no grounds to reconsider the settled position of law. In this regard, he made the following
submissions

1. The PV Narasimha Rao case’s overruling of settled law is unjustified by established judicial
precedent test.
2. The purpose of granting immunity to MPs and MLAs is to protect the form governmental
oppression
3. Concept of constitutional privileges and immunities is not in derogation of the Rule of Law,
but it is a distinct feature of our constitutional structure
4. The majority judgements upholds the dignity of MPs and MLAs by preserving their privilege
5. The offence of bribery in criminal law is complete when the bribe is given and is not
dependent on the performance of the promised favour is of no consequence to the
constitutional immunity under Articles 105(2) and 194(2).
6. The overruling of the majority judgment will have severe unintended consequences. In view
of political realities, if the parliamentary immunity conferred upon MPs/ MLAs is whittled
down, it would enhance the possibility of abuse of the law by political parties in power

Mr PS Patwalia, amicus curiae submitted that the majority judgment must be reconsidered.
In this regard, following submission where made.

1. The majority judgment has erroneously given a wide interpretation and granted immunity to
MPs from criminal prosecution when they accept a bribe to cast a vote in Parliament. The
object of Article 105 is not to place MPs above the law when the offence has been committed
before the MP enters the House of Parliament
2. That the offence of bribery is complete before the member even enters the House and
therefore, the offence has no connection or correlation with the vote that she may cast in
Parliament. Article 105 does not aim to exempt MPs from the law for offence committed
before entering the parliament. The protection under Articles 105(2) and 194(2) is not
available when the alleged criminal acts are committed outside Parliament

3. The minor judgment in PV Narasimha Rao rightly states that bribery offenses are complete
before the member even enters the House, making the immunity irrelevant
4. Granting immunity for bribery offenses in relation to the parliamentary votes undermines the
rule of law.
5. The position of law in the United Kingdom, as developed over the years, confirms the
proposition that the claim of privilege cannot be extended to immunity from prosecution for
the offence of bribery
6. The international trend (particularly in the United States, Canada and Australia) is that
parliamentary privilege does not extend to the offence of bribery.
 Constitution Law-II
Reconsidering PV Narasimha Rao does not violate the principle of stare
decisis

The present case’s question hinges on PV Narasimha Rao’s decision, impacting legislative
immunity and probity in public life. That the correctness of PV Narasimha Rao arises in the facts of
this case becomes clear from the impugned judgment of the High Court. The High Court formulated
the question for consideration to be “whether Article 194(2) of the Constitution of India confers any
immunity on the Members of the Legislative Assembly for being prosecuted in a criminal court of an
offence involving offer or acceptance of bribe.” This is the precise question that this Court adjudicated
on in PV Narasimha Rao as well, in the context of Article 105(2).

Mr Raju Ramachandran, senior counsel argued that a position of law which has stood
undisturbed since 1998 should not be interfered with by the Court. However the supreme court
countered that it does not consider it appropriate for this Court to confine itself to such a rigid
understanding of the doctrine of stare decisis. The ability of this Court to reconsider its decisions is
necessary for the organic development of law and the advancement of justice. If this Court is denuded
of its power to reconsider its decisions, the development of constitutional jurisprudence would
virtually come to a standstill.

The appellant relayed on judgments of this Court in Shanker Raju v. Union of India, Shah
Faesal v. Union of India, Keshav Mills Co. Ltd. v. CIT and Krishena Kumar v. Union of India. These
judgments reiterate the proposition that

- The doctrine of stare decisis promotes certainty and consistency in law

- The Court should not make references to reconsider a prior decision in a cavalier manner;
- A settled position of law should not be disturbed merely because an alternative view is
available.

The appellant also relies on the judgment of this Court in Ajit Mohan v. Legislative Assembly,
National Capital Territory of Delhi, where this Court observed that there are “divergent views”
amongst constitutional experts on “whether full play must be given to the powers, privileges, and
immunities of legislative bodies, as originally defined in the Constitution, or (whether it) is to be
restricted.” However, it has been urged, that this Court refused to express its views on the matter on
the ground that such an opinion must be left to the Parliament. The appellant submits that similarly,
in this case, the Court must refrain from taking a conclusive view and leave the issue for the
determination of Parliament.

The Court observed that an erroneous interpretation of the Constitution could result in a
situation where the error is not rectified for a long period of time to the detriment of the general
public. The doctrine of stare decisis provides that the Court should not lightly dissent from precedent.
However, this Court has held in a consistent line of cases, that the doctrine is flexible rule of law, and
it cannot result in perpetuating an error to the detriment of the general welfare of the public. This
Court may reconsider its earlier decisions if it believes that there is an error, or the effect of the
decision would harm the interests of the public or if “it is inconsistent with the legal philosophy of the
Constitution”.
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Bribery is not protected by parliamentary privilege

The question remains as to whether these privileges attract immunity to a member of

Parliament or of the Legislatures who engages in bribery in connection with their speech or vote. This
Court’s opinion in PV Narasimha Rao hinged on two phrases in clause (2) of Article 105 of the
Constitution These phrases were “in respect of” and the following word “anything.”

Clause (2) of the Article reads as follows “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”

In K Ajith court held that “Privileges and immunities are not gateways to claim exemptions
from the general law of the land, particularly as in this case, the criminal law which governs the action
of every citizen. To claim an exemption from the application of criminal law would be to betray the
trust which is impressed on the character of elected representatives as the makers and enactors of the
law.”

In PV Narasimha Rao the majority judgment interprets the phrase “in respect of” as having a
broad meaning and referring to anything that bears a nexus or connection with the vote given or
speech made. It therefore concluded that a bribe given to purchase the vote of a member of
Parliament was immune from prosecution under Clause (2) of Article 105. By this logic, the majority
judgment concluded that a bribe-accepting member who did not comply with the quid pro quo was
not immune from prosecution as his actions ceased to have a nexus with his vote. The majority in thus
has taken the object of Article 105 to be that members of Parliament must have the widest protection
under the law to be able to perform their function in the House

The minority in PV Narasimha Rao points out the paradoxical result which would emerge if
members were given immunity from prosecution for their speech or vote but would not be protected
if the bribe was received for not speaking or not voting. 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. The
minority opinion in PV Narasimha Rao based its view on another perspective which was not dealt with
by the majority. The minority opinion stated that the act of bribery was the receipt of illegal
gratification prior to the making of the speech or vote inside the House.

While referring to the opinion of SC Agrawal, J who this Supreme Court bench held that
bribery is not immune under clause (2) of Article 105 justifying this Supreme court 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’.

The majority judgment in PV Narasimha Rao did not discuss as in when the offence of bribery
is complete or what are the constituent elements of the offence. However, based on the facts of the
case, the majority ruled that those MPs voting as agreed were granted immunity, while those who
abstain from voting (Ajit Singh) were not covered by the immunity under Articles 105(2) and 194(2).
This decision wrongly links the offence of bribery to the performance of the act. The outcome of
interpreting Articles 105(2) and 194(2) as proposed in the PV Narashima majority judgment would be
a paradoxical situation. Such an interpretation results in a situation where a legislator is rewarded
with immunity when they accept a bribe and follow through by voting in the agreed direction which
will directly eroded the public life and morality of legislators.
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Reasons for judgment given by Supreme court in this case while overruling
the judgment of PV Narasimha Rao Judgement

1. The majority’s decision in PV Narasimha Rao, granting immunity to members of legislature

from prosecution for bribery for casting a vote or speaking has wide ramifications on public
interest, probity in public life and parliamentary democracy. It is imperative upon court to
rectify such a grave and potential danger of allowing an error to be perpetuated if the decision
were not reconsidered
2. The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may
reconsider a previous decision in appropriate cases, bearing in mind the tests which have
been formulated in the precedents of this Court
3. Claim to privilege within the parameters of the Constitution is subject to judicial review in
specific cases
4. For an individual legislator to claim privilege to seek immunity under Articles 105 and 194
from prosecution on charges of bribery for casting a vote or speaking n the legislature, such
individual legislature shall fulfil the 2-fold test “Necessity test”
i. Claim is tethered to collective functioning of the house
ii. That it is necessary to discharge of the essential duties of legislator
5. Articles 105 and 194 of the Constitution aim to maintain an environment conducive for
debate and deliberation taking place within the legislature. This purpose is destroyed because
of bribery when a member is influenced to vote or speak in a certain manner
6. Bribery is not protected under Article 105(2) and the corresponding provision of Article 194
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. The same principle applies
to bribery in connection with a speech in the House or a Committee
7. The integrity of public life will eroded because of corruption and bribery by members of the
legislatures.
8. The offence of bribery is independent to the performance of action and establishes on the
exchange of illegal gratification. That is the outcome of such establishment, is not relevant as
matter of fact because the offence of bribery is completed the movement when the legislator
accepts the bribe
9. The interpretation which has been placed on the issue in question in the judgment of the
majority in PV Narasimha Rao results in a paradoxical outcome where a legislator is conferred
with immunity when they accept a bribe and follow through by voting in the agreed direction.
On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote
independently will be prosecuted. Such an interpretation is contrary to the text and purpose
of Articles 105 and 194.
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Conclusion

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 their performance as members of the
legislature. The claim of a member to this immunity is its vital connect with the functioning of the
House or committee. The reason why the freedom of speech and to vote have been guaranteed in
Parliament is because without that Parliament or the legislature cannot function.

The purpose and object for which the Constitution stipulates powers, privileges and immunity
in Parliament must be borne in mind. Privileges are essentially related to the House collectively and
necessary for its functioning.

Articles 105 and 194 of the Constitution seek to create a fearless atmosphere in which debate,
deliberations and exchange of ideas can take place within the Houses of Parliament and the state
legislatures. For this exercise to be meaningful, members and persons who have a right to speak
before the House or any committee must be free from fear or favour induced into them by a third
party.

Members of the legislature and persons involved in the work of the Committees of the
legislature must be able to exercise their free will and conscience to enrich the functions of the House.
This is exactly what is taken away when a member is induced to vote in a certain way not because of
their belief or position on an issue but because of a bribe taken by the member. Corruption and
bribery of members of the legislature erode the foundation of Indian Parliamentary democracy. It is
destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which
deprives citizens of a responsible, responsive and representative democracy