Sita Soren v. Union of India

Judgment / Order of the Supreme Court

Judgment Dr Dhananjaya Y Chandrachud, CJI Table of Contents* A. Reference 4 B. Overview of the judgment in PV Narasimha Rao 8 C. Submissions 14 D. Reconsidering PV Narasimha Rao does not violate the principle of stare decisis 22 E. History of parliamentary privilege in India 34 F. Purport of parliamentary privilege in India 44 I. Functional analysis 44 II. Parliamentary privilege as a collective right of the House 54 III. Necessity test to claim and exercise a privilege 60 G. Bribery is not protected by parliamentary privilege 65 I. Bribery is not in respect of anything said or any vote given 65 II. The Constitution envisions probity in public life 72 III. Courts and the House exercise parallel jurisdiction over allegations of bribery 76 IV. Delivery of results is irrelevant to the offence of bribery 79 H. International position on bribery vis-à-vis privileges 87 I. United Kingdom 87 II. United States of America 99 III. Canada 108 IV. Australia 114 I. Elections to the Rajya Sabha are within the remit of Article 194(2) 118 J. Conclusion 131

* Ed. Note: Pagination is as per the original Judgment.

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1Copy pinpoint1. Parliamentary privilege, codified in Articles 105 and 194 of the Constitution, is integral to deliberative democracy in facilitating the functioning of a parliamentary form of governance. It ensures that legislators 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 with a minuscule vote share can fearlessly vote on any motion; a legislator from a remote region of the country can raise issues that impact her constituency without the fear of being harassed by legal prosecution; and a legislator can demand accountability without the apprehension of being accused of defamation.

2Copy pinpoint2. 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. A. Reference

3Copy pinpoint3. The Criminal Appeal arises from a judgment dated 17 February 2014 of the High Court of Jharkhand.1 An election was held on 30 March 2012 to elect two members of the Rajya Sabha representing the State of Jharkhand. The appellant, belonging to the Jharkhand Mukti Morcha,2 was a member of the Legislative Assembly of Jharkhand. The allegation against the appellant is that she accepted a bribe from an independent candidate for casting her vote in his favour. However, as borne out from the open balloting for the Rajya Sabha seat, 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. The round of election in question was annulled and a fresh election was held where the appellant voted in favour of the candidate from her own party again.

4Copy pinpoint4. The appellant moved the High Court to quash the chargesheet and the criminal proceedings instituted against her. The appellant claimed protection under Article 194(2) of the Constitution, relying on the judgment of the Constitution bench of this Court in PV Narasimha

1 Writ Petition (Criminal) No 128 of 2013 2 “JMM”

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Rao v. State (CBI/SPE)3. The High Court declined to quash the criminal proceedings on the ground that the appellant had not cast her vote in favour of the alleged bribe giver and thus, is not entitled to the protection under Article 194(2). The High Court’s reasoning primarily turned on this Court’s decision in PV Narasimha Rao (supra). The controversy in PV Narasimha Rao (supra) and the present case turns on the interpretation of the provisions of Article 105(2) of the Constitution (which deals with the powers, privileges, and immunities of the members of Parliament and Parliamentary committees) and the equivalent provision in Article 194(2) of the Constitution which confers a similar immunity to the members of the State Legislatures.

5Copy pinpoint5. On 23 September 2014, a bench of two judges of this Court, before which the appeal was placed, was of the view 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 which heard the appeal observed that the precise question was dealt with in a judgment of a five-judge bench in PV Narasimha Rao (supra). The bench was of 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.

6Copy pinpoint6. Finally, by an order dated 20 September 2023, a five-judge bench of this Court recorded prima facie reasons doubting the correctness of the decision in PV Narasimha Rao (supra) and referred the matter to a larger bench of seven judges. The operative part of the order reported as Sita Soren v. Union of India4, is extracted below: “24. We are inclined to agree …that the view which has been expressed in the decision of the majority in PV Narasimha Rao requires to be reconsidered by a larger Bench. Our reasons prima facie for doing so are formulated below: Firstly, the interpretation of Article 105(2) and the corresponding provisions of Article 194(2) of the Constitution

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must be guided by the text, context and the object and purpose underlying the provision. The fundamental purpose and object underlying Article 105(2) of the Constitution is that Members of Parliament, or as the case may be of the State Legislatures must be free to express their views on the floor of the House or to cast their votes either in the House or as members of the Committees of the House without fear of consequences. While Article 19(1)(a) of the Constitution recognises the individual right to the freedom of speech and expression, Article 105(2) institutionalises that right by recognising the importance of the Members of the Legislature having the freedom to express themselves and to cast their ballots without fear of reprisal or consequences. In other words, the object of Article 105(2) or Article 194(2) does not prima facie appear to be 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; Secondly, in the course of judgment in PV Narasimha Rao, Justice S.C. Agarwal noted a serious anomaly if the construction in support of the immunity under Article 105(2) for a bribe taker were to be accepted: a member would enjoy immunity from prosecution for such a charge if the member accepts the bribe for speaking or giving their vote in Parliament in a particular manner and in fact speaks or gives a vote in Parliament in that manner. On the other hand, no immunity would attach, and the member of the legislature would be liable to be prosecuted on a charge of bribery if they accept the bribe for not speaking or for not giving their vote on a matter under consideration before the House but they act to the contrary. This anomaly, Justice Agarwal observed, would be avoided if the words “in respect of” in Article 105(2) are construed to mean ‘arising out of’. In other words, in such a case, the immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part for the cause of action for the proceedings giving rise to the law; and

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Thirdly, the judgment of Justice SC Agarwal has specifically dwelt on the question as to when the offence of bribery would be complete. The judgment notes that the offence 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 receiver of the bribe would be treated to have committed the offence even when he fails to perform the bargain underlying the tender and acceptance of the bribe. This aspect bearing on the constituent elements of the offence of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority. …

26. For the above reasons, prima facie at this stage, we are of the considered view that the correctness of the view of the majority in PV Narasimha Rao should be reconsidered by a larger Bench of seven judges.”

7Copy pinpoint7. The scope of the present judgment is limited to the reference made by the order of this Court dated 20 September 2023 doubting the correctness of PV Narasimha Rao (supra). The merits of the appellant’s case and whether she committed the alleged offence are not being adjudicated by this Court at this stage. Nothing contained in this judgment may be construed as having a bearing on the merits of the trial or any other proceedings arising from it. B. Overview of the judgment in PV Narasimha Rao

8Copy pinpoint8. The general elections for the Tenth Lok Sabha were held in 1991. Congress (I) emerged as the single largest party 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 support of fourteen members was needed to defeat the no-confidence motion. The motion was defeated with two hundred and fifty-one members voting in support and two hundred and sixty-five members voting against the motion. A group of Members of Parliament5 owing allegiance to the JMM and the

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Janata Dal (Ajit Singh) Group6 voted against the no-confidence motion. Notably, one MP belonging to the JD (AS), namely, Ajit Singh, abstained from voting.

9Copy pinpoint9. A complaint was filed before the Central Bureau of Investigation7 alleging that a criminal conspiracy was devised by which the above members belonging to the JMM and the JD (AS) entered into an agreement and received bribes to vote against the no-confidence motion.8 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.9

10Copy pinpoint10. A prosecution was launched against the alleged bribe-givers and bribe-takers, and cognizance was taken by the Special Judge, Delhi. The accused moved the High Court of Delhi to quash the charges. The High Court dismissed the petitions. Appeals were preferred to this Court and culminated in the PV Narasimha Rao (supra) decision. Two major questions came up for consideration before the Court. First, 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. Second, 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. In the present judgment, we are concerned solely with the holding of the five-judge bench on the first question, i.e., the scope of the immunity from prosecution under Article 105(2) when an MP is charged with bribery.

11Copy pinpoint11. Three opinions were authored in the case – by SC Agarwal, J (for himself and Dr AS Anand, J), SP Bharucha, J (for himself and S Rajendra Babu, J) and an opinion by GN Ray, J.

12Copy pinpoint12. Justice SP Bharucha (as the learned Chief Justice then was) held that the alleged bribe-takers who cast their vote against the no- confidence motion enjoyed immunity from prosecution in a court of law under Article 105(2) of the Constitution. However, Ajit Singh

6 “JD (AS)” 7 “CBI” 8 “Bribe-takers” 9 “Bribe-givers”

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(who abstained from voting) and the alleged bribe-givers were held not to enjoy the same immunity. Justice Bharucha held that for breach of parliamentary privileges and its contempt, Parliament may proceed against both the alleged bribe-takers and bribe-givers. Justice Bharucha held: 12.1. The provisions of Article 105(1) and Article 105(2) suggest that the freedom of speech for MPs is independent of the freedom of speech and its exceptions contained in Article 19. MPs must be free of all constraints about what they say in Parliament. A vote is treated as an extension of speech and is given the protection of the spoken word; 12.2. The expression “in respect of” in Article 105(2) must receive a “broad meaning” and entails that an MP is protected from any proceedings in a court of law that relate to, concern or have a connection or nexus with anything said or a vote given by him in Parliament; 12.3. The 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 no-confidence motion. The stated object of the alleged conspiracy and agreement was to defeat the no-confidence 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; 12.4. 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; 12.5. The seriousness of the offence committed by the bribe-takers does not warrant a narrow construction of the Constitution.

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Such a construction runs the risk of impairing the guarantee of an effective parliamentary democracy; 12.6. 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; 12.7. With regard to whether the bribe-givers enjoy immunity, since the prosecution against Ajit Singh would proceed, the charge against the bribe-givers of conspiracy and agreeing with Ajit Singh to do an unlawful act would also proceed. Further, Article 105(2) does not provide that what is otherwise an offence is not an offence when it is committed by an MP. The provision 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).

13Copy pinpoint13. 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. In his opinion, Justice Agarwal held as follows: 13.1. The object of the immunity under Article 105(2) is to ensure the independence of legislators for the healthy functioning of parliamentary democracy. An interpretation of Article 105(2) which enables an MP to claim immunity from prosecution for an offence of bribery would place them above the law. This would be repugnant to the healthy functioning of parliamentary democracy and subversive of the rule of law; 13.2. The expression “in respect of” precedes the words “anything said or any vote given” in Article 105(2). The words “anything said or any vote given” can only mean speech that has been made or a vote that has already been given and does not extend to cases where the speech has not been made or the vote has not been cast. Therefore, interpreting the expression “in respect of” widely would result in a paradoxical situation. An

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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; 13.3. The phrase “in respect of” must be interpreted to mean “arising out of”. Immunity under Article 105(2) is available only to give protection against liability for an act that follows or succeeds as a consequence of making the speech or giving of vote by an MP and not for an act that precedes the speech or vote and gives rise to liability which arises independently of the speech or vote; 13.4. 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;” and 13.5. The international trend, including law in the United States, Australia and Canada, reflects the position that legislators are liable to be prosecuted for bribery in connection with their legislative activities. Most of the Commonwealth countries treat corruption and bribery by members of the legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There is no reason why legislators in India should not be covered by laws governing bribery and corruption when all other public functionaries are subject to such laws.

14Copy pinpoint14. GN Ray, J in a separate opinion concurred with the reasoning of Agarwal, J that an MP is a public servant under the PC Act and on the question regarding the sanctioning authority under the PC Act. However, on the interpretation of Article 105(2), GN Ray, J concurred with the judgment of Bharucha, J. Hence, the opinion authored by Bharucha, J on the interpretation of Article 105(2) represents the

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view of the majority of three judges of this Court.10 The opinion authored by SC Agarwal, J on the other hand, represents the view of the minority.11 C. Submissions

15Copy pinpoint15. Over the course of the hearing, we have heard 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. This Court being a court of record, the submissions made by the learned advocates are briefly listed below.

16Copy pinpoint16. Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant submitted that the judgment of the majority in PV Narasimha Rao (supra) is squarely 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: 16.1. The overruling of long-settled law in PV Narasimha Rao (supra) is unwarranted according to the tests laid down by this court on overturning judicial precedents;12 16.2. The object behind conferring immunity on MPs and MLAs was to shield them from “being oppressed by the power of the crown”. The apprehension of parliamentarians being arrested shortly before or after the actual voting or making of a speech in the Parliament (such vote or speech directed against the Executive) was the precise reason for introducing the concept of privileges and immunities; 16.3. The 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. The majority judgment preserves

10 The opinion authored by SP Bharucha, J has been referred to as majority judgment hereinafter 11 The opinion authored by SC Agarwal, J has been referred to as minority judgment hereinafter 12 Keshav Mills Co. Ltd v. CIT, [1965] 2 SCR 908 : AIR 1965 SC 1636, para 23; Krishena Kumar v. Union of India, [1990] 3 SCR 352 : (1990) 4 SCC 207, para 33; Shanker Raju v. Union of India, [2011] 2 SCR 1: (2011) 2 SCC 132, para 10; Shah Faesal and Ors. v. Union of India (UOI), [2020] 3 SCR 1115 : (2020) 4 SCC 1, para 17

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the privilege of MPs and MLAs to protect their dignity as legislators and is not opposed to the rule of law; 16.4. The majority judgment gave due regard and recognition to Parliament’s exclusive powers to take appropriate steps against corrupt practices by its members, just as the Parliament recognizes the limits on discussions in the House, such as the inability to entertain discussions on the conduct of judges of constitutional courts under Article 121 of the Constitution; 16.5. The present position on parliamentary privilege in India and the UK entails that (a) it is fundamental to a democratic polity and courts have exercised judicial restraint; and (b) the privilege must necessarily relate to the exercise of “legislative functions”, which in India relates to voting and making of speeches. While determining whether an act is immune from judicial scrutiny, the ‘necessity test’ is to be applied, i.e., whether there is a nexus between the act in question and the legislative process of voting/making speeches; 16.6. The so-called “anomaly” in the majority judgment flows from the plain language of Articles 105(2) and 194(2) and any attempt to whittle down their protective scope to adhere to what is seemingly “logical”, “fair” or “reasonable” would be constitutionally unjustified. However, while advancing his oral submissions in rejoinder, Mr Ramachandran conceded that the view that an abstention from voting would not be protected under Article 105(2) was incorrect and abstaining from voting, in fact, constitutes casting a vote; 16.7. The minority judgment in PV Narasimha Rao (supra) has erred in reading “in respect of” as “arising out of”. Such a reading is not warranted by either the plain language or the intent of the provision; 16.8. The fact that 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). Once a speech is made or a vote is given, the nexus, i.e., “in respect of”, is fulfilled;

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16.9. 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; and 16.10. Voting in the Rajya Sabha Elections is within the scope of protection of Article 194(2) as it has all the “trappings” of any other law-making process in the legislature.

17Copy pinpoint17. Mr Venkataramani, the learned Attorney General for India advanced a preliminary submission that the decision in PV Narasimha Rao (supra) is inapplicable to the instant case. He submitted that the exercise of franchise by an elected member of the legislative assembly in a Rajya Sabha election does not fall within the ambit of Article 194(2), and thus, PV Narasimha Rao (supra) does not have any application to the present case. He submits that the objective of Article 194(2) is to protect speech and conduct in relation to the functions of the legislature. Therefore, any conduct which is not related to legislative functions, such as the election of members to the Rajya Sabha, will fall outside the ambit of Article 194(2). According to the learned Attorney General, the election of members to the Rajya Sabha is akin to any other election process and cannot be treated as a matter of business or function of the legislature.

18Copy pinpoint18. In response to the learned Attorney General’s submissions that the polling for Rajya Sabha cannot be considered a proceeding of the House, Mr Ramachandran has submitted that the cases relied on by the learned Attorney General were not rendered in a context where parliamentary privilege or immunity was sought to be invoked and the passing reference to the concept of ‘legislative proceedings’ was in an entirely different context. Further, certain legislative processes such as ad-hoc committees, standing committees, elections of the constitutional offices of the President/Vice President, and members of the Rajya Sabha, do not necessarily take place on the floor of the House when it is in session. However, they have all the ‘trappings’ of carrying out the ‘legislative process’.

19Copy pinpoint19. Mr P S Patwalia, amicus curiae has submitted that the majority judgment must be reconsidered, and the view of the minority reflects the correct position of law. In this regard, Mr Patwalia made the following submissions:

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19.1. The majority judgment has erroneously given a wide interpretation to the expression “in respect of” 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; 19.2. The ratio of the judgments of this court rendered after PV Narasimha Rao (supra) militates against the grant of immunity to MPs for taking a bribe for casting votes;13 19.3. The minority judgment correctly notes 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. The protection under Articles 105(2) and 194(2) is not available when the alleged criminal acts are committed outside Parliament; 19.4. The proposition that MPs are immune from prosecution for an offence of bribery in connection with their votes in Parliament is subversive of the rule of law; 19.5. The majority judgment results in an anomalous situation, where an MP who accepts a bribe and does not cast his vote can be prosecuted, while a member who casts his vote is given immunity; 19.6. 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; and 19.7. The international trend (particularly in the United States, Canada and Australia) is that parliamentary privilege does not extend to the offence of bribery. This trend is correctly relied on in the minority judgment, while the majority judgment relies on decisions which have been subsequently diluted even in their original jurisdictions.

13 Raja Ram Pal v. Hon’ble Speaker Lok Sabha, [2007] 1 SCR 317 : (2007) 3 SCC 184, Lokayukta, Justice Ripusudan Dayal v. State of M.P. [2014] 3 SCR 242 : (2014) 4 SCC 473 and State of Kerala v. K. Ajith, [2021] 6 SCR 774 : (2021) SCC OnLine 510

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20Copy pinpoint20. Mr Gopal Sankarnarayan, senior counsel appearing on behalf of the intervenor endorsed the view taken by the amicus curiae. Additionally, he made the following submissions: 20.1. While the majority judgment has been doubted on multiple occasions, the minority judgment has been extensively relied on by this Court; 20.2. The word “any” employed in Articles 105 and 194 of the Constitution ought to be given a narrow interpretation and should not mechanically be interpreted as ‘everything’, especially as it grants an exceptional immunity not available to the common person; 20.3. The expression “in respect of” must be read narrowly. It must be tied down to ‘legitimate acts’ that are a part of the legislative process involving speech or a vote in Parliament or before a committee. Any other interpretation would violate the sanctity of the democratic process and the trust placed in the legislators by the public; 20.4. Strict interpretation ought to be given to laws dealing with corruption which affects the public interest; 20.5. The offence of bribery is complete on receipt of the bribe well before the vote is given or speech is made in Parliament. The offence under Section 7 (and Section 13) of the PC Act does not require ‘performance’. Therefore, the delivery of results is irrelevant to the offence being established and the distinction created by the majority is artificial; 20.6. The effect of the majority judgment is that it creates an illegitimate class of public servants which is afforded extraordinary protection which would be a violation of Article 14, as also being manifestly arbitrary; and 20.7. Internationally, the legal position in the USA, UK, Canada, Australia, South Africa and New Zealand supports the minority judgment.

21Copy pinpoint21. Mr Tushar Mehta, the learned Solicitor General of India highlighted the significance of preserving parliamentary privileges. He submitted that the issue for consideration before this Court is not the contours of parliamentary privileges but whether the offence of bribery is

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complete outside the legislature. Mr Mehta submitted that the offence of bribery under the PC Act, both before and after the 2018 amendment, is complete on the acceptance of the bribe and is not linked to the actual performance or non-performance of the official function to which the bribe relates.

22Copy pinpoint22. Mr Vijay Hansaria, Senior Advocate appearing on behalf of the intervenor, supplemented the arguments assailing the majority judgment. He submitted that the principle of parliamentary privilege must be interpreted in the context of the criminalization of politics and through the prism of constitutional morality. In his written submissions, Mr A Velan, Advocate for the intervenor supported the submission that the majority judgment in PV Narasimha Rao (supra) ought to be reconsidered. D. Reconsidering PV Narasimha Rao does not violate the principle of stare decisis

23Copy pinpoint23. We begin by addressing the preliminary argument of Mr Raju Ramachandran, that overruling of the long-settled law in PV Narasimha Rao (supra) is unwarranted by the application of the tests laid down by this Court on overturning judicial precedent. The order of reference provides reasons for prima facie doubting the correctness of the decision in PV Narasimha Rao (supra) including its impact on the “polity and the preservation of probity in public life.” However, since the learned Senior Counsel has reiterated the preliminary objection to reconsidering the decision in PV Narasimha Rao (supra) before this bench of seven judges, the argument has been addressed below.

24Copy pinpoint24. A decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength.14

25Copy pinpoint25. In the present case, the case was first placed before a bench of two judges who referred the case to a bench of three judges. The

14 Central Board of Dawoodi Bohra Community vs. State of Maharashtra, [2004] Suppl. 6 SCR 1054 : (2005) 2 SCC 673, para 12

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bench of three judges referred the case to a bench of five judges. In consonance with judicial discipline, the correctness of the decision in PV Narasimha Rao (supra) was only doubted by the co-equal bench of five judges of this Court in a detailed order. Accordingly, the matter has been placed before this bench of seven judges.

26Copy pinpoint26. Doubts about the correctness of the decision in PV Narasimha Rao (supra) have been raised by this Court in several previous decisions as well. For instance, in Kalpana Mehta v. Union of India,15 one of us (D.Y. Chandrachud, J) observed: “221. The view of the minority was that the offence of bribery is made out against a bribe-taker either upon taking or agreeing to take money for a promise to act in a certain manner. Following this logic, S.C. Agrawal, J. held that the criminal liability of a Member of Parliament who accepts a bribe for speaking or giving a vote in Parliament arises independent of the making of the speech or the giving of the vote and hence is not a liability “in respect of anything said or any vote given” in Parliament. The correctness of the view in the judgment of the majority does not fall for consideration in the present case. Should it become necessary in an appropriate case in future, a larger Bench may have to consider the issue.” (emphasis supplied)

27Copy pinpoint27. Similar observations have been made by this Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha.16 The Court has relied on the minority judgment in several decisions, notably Kuldip Nayar v. Union of India.17 and Amarinder Singh v. Punjab Vidhan Sabha.18 As the correctness of the decision in PV Narasimha Rao (supra) did not directly arise in these cases the Court refrained from making a reference or conclusive observations about the correctness of this decision. However, the present case turns almost entirely on the law laid down in PV Narasimha Rao (supra).

15 [2018] 4 SCR 1 : (2018) 7 SCC 1 16 [2007] 1 SCR 317 : (2007) 3 SCC 184 17 (2006) 7 SCC 1 18 [2010] 4 SCR 1105 : (2010) 6 SCC 113

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28Copy pinpoint28. That the correctness of PV Narasimha Rao (supra) arises squarely 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 (supra) as well, in the context of Article 105(2).

29Copy pinpoint29. Further, both the counsel for the appellant and the counsel for CBI relied on the reasoning in PV Narasimha Rao (supra). The High Court, in its analysis, held that since Article 194(2) is pari materia to Article 105(2), the law laid down in PV Narasimha Rao (supra) covers the field. The High Court relied on PV Narasimha Rao (supra) in holding that an MP who has not cast his vote is not covered by the immunity. Since the appellant did not vote as agreed, she was held not to be protected from immunity under Article 194(2).

30Copy pinpoint30. The issue which arose before the High Court turned on the decision in PV Narasimha Rao (supra). Therefore, this proceeding provides the correct occasion to settle the law once and for all. There is no infirmity in the reference to seven judges to reconsider the decision in PV Narasimha Rao (supra).

31Copy pinpoint31. Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant has argued that a position of law which has stood undisturbed since 1998 should not be interfered with by the Court. We do 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. In the past, this Court has not refrained from reconsidering a prior construction of the Constitution if it proves to be unsound, unworkable, or contrary to public interest. This delicate balance was eloquently explained by HR Khanna, J in Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay19 in the following terms:

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“22. […] The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well-established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time. […]”

32Copy pinpoint32. A Bench of seven judges of this Court in Bengal Immunity Company Limited v. State of Bihar and Ors.,20 delineated the powers of this Court to reconsider its own decisions in view of the doctrine of stare decisis. Both SR Das, CJ and Bhagwati, J, in their separate opinions, detailed the power of this Court to reconsider its judgments, particularly when they raise issues of constitutional importance. SR Das, J explored the judgments delivered in various jurisdictions, such as England, Australia, and the United States to conclude that this Court cannot be denuded of its power to depart from its previous decisions, particularly on questions of interpretation of the Constitution. 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 test laid down by the Court was rooted in establishing the “baneful effect” of the previous decision on the “general interests of the public”. It was observed: “15. […] in a country governed by a Federal Constitution, such as the United States of America and the Union of India are, it is by no means easy to amend the Constitution if an erroneous interpretation is put upon it by this Court. (See Article 368 of our Constitution). An erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate

20 [1955] 2 SCR 603 : 1955 SCC OnLine SC 2

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remain unrectified for a considerable time to the great detriment to public well being … There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. Article 141 which lays down that the law declared by this Court shall be binding on all courts within the territory of India quite obviously refers to courts other than this Court. The corresponding provision of the Government of India Act, 1935 also makes it clear that the courts contemplated are the subordinate courts.” (emphasis supplied) NH Bhagwati, J also emphasized the distinction between deviating from a decision dealing with the interpretation of statutory provisions and an interpretation of the Constitution, while opining that while an incorrect interpretation of a statute may be corrected by the legislature, it is not as easy to amend the Constitution to correct an unworkable interpretation. Akin to the exposition by SR Das, J, the test to reconsider previous decisions in the opinion of Bhagwati, J is whether the previous decision is “manifestly wrong or erroneous” or “public interest” requires it to be reconsidered.

33Copy pinpoint33. 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,21 that the doctrine is not an inflexible rule of law, and it cannot result in perpetuating an error to the detriment of the general welfare of the public. This Court may review 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”. In cases involving the interpretation of the Constitution, this Court would do so more readily than in other branches of law because not rectifying a manifest error would be harmful to public interest and the polity. The period of time over which the case has held the field is not of primary consequence.

21 See Sambhu Nath Sarkar v. State of W.B., [1974] 1 SCR 1 : (1973) 1 SCC 856; Lt. Col. Khajoor Singh v. Union of India, [1961] 2 SCR 828; Union of India v. Raghubir Singh, [1989] 3 SCR 316 : (1989) 2 SCC 754; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, [2002] 3 SCR 100 : (2002) 5 SCC 111; Supreme Court Advocates-on-Record Assn. v. Union of India, [2015] 13 SCR 1 : (2016) 5 SCC 1

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This Court has overruled decisions which involve the interpretation of the Constitution despite the fact that they have held the field for long periods of time when they offend the spirit of the Constitution.

34Copy pinpoint34. The judgment of the majority in PV Narasimha Rao (supra) deals with an important question of constitutional interpretation which impacts probity in public life. The decision has been met with notes of discord by various benches of this Court ever since it was delivered in 1998. An occasion has arisen in this case to lay down the law and resolve the dissonance. This is not an instance of this Court lightly transgressing from precedent. In fact, this case is an example of the Court giving due deference to the rule of precedent and refraining from reconsidering the decision in PV Narasimha Rao (supra) until it arose squarely for consideration.

35Copy pinpoint35. The appellant has relied on judgments of this Court in Shanker Raju v. Union of India22, Shah Faesal v. Union of India23, Keshav Mills Co. Ltd. v. CIT24 and Krishena Kumar v. Union of India25. These judgments reiterate the proposition that (i) the doctrine of stare decisis promotes certainty and consistency in law; (ii) the Court should not make references to reconsider a prior decision in a cavalier manner; and (iii) a settled position of law should not be disturbed merely because an alternative view is available. However, all these judgments recognize the power of this Court to reconsider its decisions in certain circumstances – including considerations of “public policy”; “public good” and to “remedy continued injustice”. In the facts which arose in those cases, this Court found that there was no compelling reason to reconsider certain judgments of this Court.

36Copy pinpoint36. In Shanker Raju (supra), this Court was dealing with the interpretation of the Administrative Tribunals (Amendment) Act, 2006 and the appointment of a judicial member of the Central Administrative Tribunal. The two-judge Bench observed that it was bound by the decision of a bench of larger strength adjudicating a similar issue and could not reconsider the view taken in that decision merely because an alternative view was available.

22 [2011] 2 SCR 1 : (2011) 2 SCC 132 23 [2020] 3 SCR 1115 : (2020) 4 SCC 1 24 [1965] 2 SCR 908 25 [1990] 3 SCR 352 : (1990) 4 SCC 207

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37Copy pinpoint37. In Shah Faesal (supra), a Constitution Bench of this Court was adjudicating on the question of whether the petitions were to be referred to a larger bench of seven judges on the ground that there were purportedly two contradictory decisions by benches of five judges. The Court observed that references to larger benches cannot be made casually or based on minor inconsistencies between two judgments. In that context, the Court found that the decisions were not irreconcilable with each other nor was one of the decisions per incuriam. While laying down the law on the doctrine of stare decisis, the Court held that in certain cases the Court may reconsider its decisions, particularly when they prove to be “unworkable” or “contrary to well-established principles”. The Court also adverted to the transition in the practice of the House of Lords in the UK, from an absolute prohibition on reconsidering previous decisions to the present position, which permits overruling of decisions in certain circumstances. The Court also quoted the Canadian position to the effect that while precedent should not routinely be deviated from reconsidering previous decisions is permissible when it is necessary in “public interest”.

38Copy pinpoint38. The decision in Keshav Mills (supra) interpreted the provisions of the Income Tax Act, 1922 and in the circumstances of that case, the Court did not find any compelling reasons to reconsider previous decisions on a similar point of law. The Court recognized that it is permissible in circumstances where it is in the “interests of the public” or if there are any other “valid” or “compulsive” reasons, to reconsider a prior decision. Further, the Court noted that it would not be wise to lay down principles to govern the approach of the Court in reviewing its decisions as it is based on several considerations, including, the impact of the error on the “general administration of law” or on “public good”. This exposition is, in fact, contained in the same paragraph that the appellant relies on to advance a rigid understanding of stare decisis. The bench of seven judges of this Court (speaking through Gajendragadkar, CJ) observed: “23. […] In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions

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of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case, it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: —What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a

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unanimous decision of a Bench of five learned Judges of this Court.” (emphasis supplied)

39Copy pinpoint39. Similarly, Krishena Kumar (supra) was a case about pension payable to government employees. There, too, although the Court did not find compelling reasons to reconsider its previous decisions in that factual context, it recognized that the Court does have the power to do so in order to “remedy continued injustice” or due to “considerations of public policy”.

40Copy pinpoint40. The context in the above cases cited by the appellant is not comparable with the present case. As set out in the order of reference and in the course of this judgment, the decision in PV Narasimha Rao (supra) has wide ramifications on public interest, probity in public life and the functioning of parliamentary democracy. The majority judgment contains several apparent errors inter alia in its interpretation of the text of Article 105; its conceptualization of the scope and purpose of parliamentary privilege and its approach to international jurisprudence all of which have resulted in a paradoxical outcome. The present case is one where there is an imminent threat of this Court allowing an error to be perpetuated if the decision in PV Narasimha Rao (supra) is not reconsidered.

41Copy pinpoint41. Finally, the appellant also relies on the judgment of this Court in Ajit Mohan v. Legislative Assembly, National Capital Territory of Delhi26, 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 argument is misconceived.

42Copy pinpoint42. This judgment does not seek to determine or restrict the “powers, privileges, and immunities” of the legislature as defined in the Constitution. Rather, this judgment has a limited remit which is to

26 [2021] 14 SCR 611 : (2022) 3 SCC 529

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adjudicate on the correct interpretation of Article 105 and Article 194 of the Constitution. Therefore, this Court is adjudicating upon the interpretation of the Constitution as it stands, and not on the question of whether “full play” should be given to the privileges.

43Copy pinpoint43. In a separate but concurring opinion in Mark Graves v. People of the State of New York27 while overruling two previous decisions of the United States Supreme Court on a question of constitutional importance, Frankfurter, J pithily observed: “Judicial exegesis is unavoidable with reference to an act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” (emphasis supplied)

44Copy pinpoint44. The above formulation holds true for the Constitution of India as well, which is a transformative document that raises delicate issues of constitutional interpretation. Cognizant of the consequences of the majority judgment, we endeavour to stay true to what the “Constitution itself” fathomed as the remit of Articles 105(2) and 194(2) even if it may be at the cost of moving away from “what we have said about it” in PV Narasimha Rao (supra). We believe that we must not perpetuate a mistaken interpretation of the Constitution, merely because of rigid allegiance to a previous opinion of five judges of this Court.

45Copy pinpoint45. Having adverted to the background, submissions and preliminary issues, we turn to the subject which arises for consideration. E. History of parliamentary privilege in India

46Copy pinpoint46. In a deliberative democracy, the aspirations of the people are met by discourse in democratic institutions. The foremost among these institutions are Parliament and the State Legislatures. The object of the Constitution to give life and meaning to the aspirations of the people is carried out by its representatives through legislative business, deliberations, and dialogue. Parliament is called the “grand inquest

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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. 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. Our Constitution intended to create institutions where deliberations, views and counterviews could be expressed freely to facilitate a democratic and peaceful social transformation.

47Copy pinpoint47. Parliament is a quintessential public institution which deliberates on the actualisation of the aspirations of all Indians. The fulcrum of parliamentary privileges under a constitutional and democratic set up is to facilitate the legislators to freely opine on the business before the House. Freedom of speech in the legislature is hence a privilege essential to every legislative body.

48Copy pinpoint48. A deliberative democracy imagines deliberation as an ethic of good governance and is not restricted to the parliamentary sphere alone. The opinion of Sanjeev Khanna, J. in Rajeev Suri v DDA,28 elucidates the contours of deliberative democracy as follows: “653. Deliberative democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision-making. Contestation before the courts post the decision or legislation is one form of participation. Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision-making stage. In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision-making is more efficient in smaller groups. The process requires gathering, processing and drawing inferences from information especially in contentious

28 [2021] 15 SCR 283 : (2022) 11 SCC 1

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matters. Vested interests can be checked. Difficult, yet beneficial decisions can be implemented. Government officers, skilled, informed and conversant with the issues, and political executive backed by the election mandate and connected with electorate, are better equipped and positioned to take decisions. This enables the elected political executive to carry out their policies and promises into actual practice. Further, citizens approach elected representatives and through them express their views both in favour and against proposed legislations and policy measures. Nevertheless, when required draft legislations are referred to Parliamentary Committees for holding elaborate consultation with experts and stakeholders. The process of making primary legislation by elected representatives is structured by scrutiny, consultation and deliberation on different views and choices infused with an element of garnering consensus. …

656. However, delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry›s right to know and be informed. Democracy, by the people, is not a right to periodical referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the Government’s duty to inform are embedded in the democratic form of governance as well as the fundamental right to freedom of speech and expression. Transparency and receptiveness are two key propellants as even the most competent and honest decision-makers require information regarding the needs of the constituency as well as feedback on how the extant policies and decisions are operating in practice. This requires free flow of information in both directions. When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility. [ With reference to Olson’s 7th implication, “7. Distributional

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coalitions … reduce the rate of economic growth…”. ‘The Rise and Decline of Nations’ by Mancur Olson and subsequent studies.]” (emphasis supplied) The freedom of elected legislators to discuss and debate matters of the moment on the floor of the House is a key component of a deliberative democracy in a Parliamentary form of government. The ability of legislators to conduct their functions in an environment which protects their freedom to do so without being overawed by coercion or fear is constitutionally secured. As citizens, legislators have a fundamental right to the freedom of speech and expression. Going beyond that, the Constitution secures the freedom to speak and debate in the legislatures both of the Union and States. This is the protection afforded to individual legislators. The recognition of that right is premised on the need to secure the institutional foundation of Parliament and the State legislatures as key components of the dialogue, debate and critique which sustains democracy.

49Copy pinpoint49. In the Indian context, deliberative democracy as well as the essential privilege of freedom of speech in legislatures cannot be understood without reference to its history and development in the aftermath of the struggle for independence from colonial rule. India provides an example in history where representative institutions have evolved in stages. The privileges of legislatures in India have been closely connected with the history of these institutions. This history can be traced to the history of parliamentary privileges in the House of Commons in the UK as well as the struggle of the Indian Legislatures to claim these privileges under colonial rule. The steps which were initiated under colonial rule to bring political and parliamentary governance to India always fell short of the aspirations of Indians. This can primarily be attributed to the fact that British rule was resistant to the desire of Indians to be independent. Hence, the Indian legislatures were not acknowledged to have comparable privileges to those of the House of Commons in the UK. In Kielly v. Carson29, the Privy Council had propounded that the House of Commons in the UK had acquired privileges by ancient usage and colonial legislatures had no lex et consuetudo parliament or the law and custom of Parliament as

29 (1841-42) 4 Moo. PC 63

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their rights emanated from a statute. This implied that there were no inherent rights granted to legislatures under colonial rule.

50Copy pinpoint50. Under the rule of the East India Company, law making lay in the exclusive domain of the executive till 1833. The Government of India Act 1833 redesignated the Governor-General of Bengal as the Governor-General of India with exclusive legislative powers. The Governor-General was to have four members one of whom would be a law member who was not entitled to act as a member of the Council except for legislative purposes. This was an introductory measure for legislatures in India because the Council of the Governor-General would hold distinct meetings to transact its executive functions and legislative functions. This procedure was envisaged for convenience in enacting laws in the vast and diverse social milieu in India rather than a desire to provide representation as a means for framing better laws. However, reflecting the need for legislative privileges in carrying out the duties of the legislators, the first law member, Lord Macaulay, made efforts to secure some special facilities in the nature of powers by his draft standing orders. These special facilities included providing complete information on the subject of the legislation, the right to be present in all meetings of the Council of the Governor-General, freedom of speech, and freedom of voting.30

51Copy pinpoint51. The privileges of attendance and voting even in non-legislative business were extended by the Charter Act 1853. It marked a further separation of the executive and legislative functions. The Legislative Council was to have additional members to help transact the legislative business and give their independent considerations to the laws under scrutiny. These members in the Legislative Council did not have any privileges by statute, but the absence of restrictions on their freedom of speech was construed as conferring inherent rights and privileges on them. The Council therefore attempted to assume to itself powers akin to a mini Parliament modelled around the House of Commons in the UK. The Legislative Council under the Acts of 1833 and 1853 had the power to frame their own rules of procedure.

52Copy pinpoint52. This power was taken away in the Indian Council Act 1861. However, Section 10 of the 1861 Act introduced between six and twelve non- official members into the Legislative Councils, who could be British

30 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 317-18

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or Indians. There was an implicit recognition of the freedom of speech and vote of these additional members. The British Parliament had recognised the existence of the privilege for the members of the Indian Councils, which was also confirmed by the Secretary of State for India.31 Nevertheless the provisions of the 1861 Act were sufficiently stringent and did not allow the Council to have any activity beyond the limited sphere prescribed by the Act. Moreover, there was a marked difference between the freedom of speech effectively enjoyed by official members and nominated Indian members.32

53Copy pinpoint53. The Government of India Act 1909 marked a significant shift in the evolution of India’s political institutions. The Act allowed more Indians to be a part of Legislative Councils and enlarged their functions. Members were allowed to ask questions and supplementary questions to the executive. The Act was a way forward for electoral and representative governance by prescribing the indirect election of Indians to the Council. However, even in these Councils, discussion on certain subjects was not permitted. Non-official members continued to assert the privilege of free speech in the Council. Despite being indirectly elected, the Indian members of legislatures in India diluted the rigidity of colonial governance in India. In the absence of official support, privileges grew as a convention rather than law. The executive felt at liberty to violate the privileges of the Legislative Council and at any rate maintained that the Councils in India did not have any privilege akin to the UK House of Commons.33

54Copy pinpoint54. The Government of India Act 1919 separated the legislatures from executive control. It introduced dyarchy, by prescribing two classes of administrators – the Executive councillors who were not accountable to the legislature and the ministers who would enjoy the confidence of the legislature. The Act extended more powers to the legislatures than previously enjoyed by them. However, members were restricted on the range of subjects which they could discuss, participate in and vote upon. Many privileges were not specified in the 1919 Act or rules of the procedure of the House. Nevertheless, the legislature claimed privileges as an inherent right of the legislature in the face of

31 Legislative Dispatch No. 14 of 9 August 1861, para 23 32 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 102-103 33 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 139-141, 158

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