Sita Soren v. Union of India

Sita Soren v. Union of India

an unwilling executive. The reason for the hesitation of the colonial Government of India was that a government run by a foreign power was not willing to extend parliamentary privileges to Indian legislators as a recognition of their possessing sovereign powers.34 The 1919 Act gave a qualified privilege of freedom of speech to the Houses of Legislature. Section 24(7) of the 1919 Act read thus: “(7) Subject to the rules and standing orders affecting the Council, there shall be freedom of speech in the Governors’ Legislative Councils. No person shall be liable to any proceedings in any court by reason of his speech or vote in any such Council or by reason of anything contained in any official report of the proceedings of any such Council.” A corresponding provision was made in Section 11(7) of the Act with respect to provincial Legislative Councils. The freedom of speech in the Legislative Councils was subject to the Rules promulgated by the Governor-General. Therefore, while freedom of speech was extended to the Legislative Councils, they were ultimately made subject to the pleasure of the Governor-General and the Secretary of State for India for the legislature’s rule making power. The Act therefore did not make provisions to grant freedom of speech to Indian legislatures but rather aimed to place restrictions on the freedom of speech in the House. These restrictions materially impeded the ability of the legislatures to hold discussions on issues of public importance and introduce legislation. The Act however did grant the legislature power to define its own privilege.

55Copy pinpoint55. A committee was set up in 1924 within a few years of the introduction of the Government of India Act 1919. The committee was tasked with enquiring into the difficulties or defects in the 1919 Act and exploring remedies for securing them. The Reforms Committee of 1924 made reference to the privileges of Indian legislative bodies and opined that: “…at present such action would be premature. At the same time we feel that the legislatures and the members thereof have not been given by the Government of India Act all the protection that they need. Under the statute there is

34 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 322

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freedom of speech in all the legislatures and immunity from the jurisdiction of the Courts in respect of speeches or votes. Under the rules the Presidents have been given considerable powers for the maintenance of order, but there the matter ends.”35

56Copy pinpoint56. Interestingly, the committee suggested that certain additional privileges be granted to Indian Legislatures. The committee further recommended introducing a penal provision for influencing votes within the legislature through inter alia bribery. The report stated: “We are given to understand that there are at present no means, of dealing with the corrupt influence of votes within the legislature. We are unanimously of opinion that the influencing of votes of members by bribery, intimidation and the like should be legislated against. Here again we do not recommend that the matter should be dealt with as a breach of privilege. We advocate that these offences should be made penal under the ordinary law.”

57Copy pinpoint57. The government introduced a Legislative Bodies Corrupt Practices Bill which proposed to penalise (i) the offering of bribe to a member of a legislature in connection with his functions; and (ii) the receipt on demand by a member of the legislature of a bribe in connection with his functions.³⁶ The Bill ultimately lapsed and was not reintroduced.

58Copy pinpoint58. The provisions of the 1919 Act were substantially retained in Section 28(1) of the Government of India Act 1935. Section 28(1) read thus: “(1) Subject to the provisions of this Act and the rules and standing orders regulating the procedure of the Federal Legislature, there shall be freedom of speech in the Legislature, and no member of the Legislature 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 either Chamber of the Legislature of any report, paper, votes or proceedings.”

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A corresponding provision was made in Section 71(1) of the 1935 Act with respect to Provincial Legislatures. The House was empowered to make rules for the conduct of proceedings. However, they were always to give way to the rules framed by the Governor-General for the House. Parliamentary privileges had struck root in India on legislators demanding parity with the UK House of Commons with reasonable adjustments to account for Indian needs. This was because legislators in India felt that their discharge of legislative functions would be adversely affected in the absence of these privileges. Prominent among the demands of legislators were the power to punish for contempt of the House, supremacy of the Chair in matters of the House, and freedom of speech and freedom from arrest to allow members to partake in the proceedings and discharge their functions.

59Copy pinpoint59. At no point were these privileges demanded as a blanket immunity from criminal law. Even in the face of colonial reluctance, the demand for parliamentary privileges in India was always tied to the relationship which it bore to the functions which the Indian legislators sought to discharge.

60Copy pinpoint60. This background prevailed when the Constituent Assembly was deciding the fate of Articles 85 and 169 of the draft Constitution which have since become Articles 105 and 194 of the Constitution. Our founding parents intended the Constitution to be a ‘modernizing’ force. Parliamentary form of democracy was the first level of this modernizing influence envisaged by the framers of the Constitution.³⁷ The Constitution was therefore born in an environment of idealism and a strength of purpose born of the struggle for independence. The framers intended to have a Constitution which would light the way for a modern India.³⁸

61Copy pinpoint61. When the Constituent Assembly convened to discuss Article 85 of the draft Constitution, Mr HV Kamath moved an amendment to remove the reference to the House of Commons in the UK and replace it with the Dominion Legislature in India immediately before the commencement of the Constitution. Opposing this amendment Mr Shibban Lal Saxena said, “So far as I know there are no privileges which we enjoy and if he wants the complete nullification of all our

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privileges he is welcome to have his amendment adopted.”39 The members of the Constituent Assembly were therefore keenly aware that their privileges under the colonial rule were not ‘ancient and undoubted’ like the House of Commons in the UK but a statutory grant made by successive enactments and assertion by legislatures. F. Purport of parliamentary privilege in India I. Functional analysis

62Copy pinpoint62. Article 105 which is located in Part V Chapter II of the Constitution stipulates the powers, privileges, and immunities of Parliament, its members and committees. An analogous provision concerning State Legislatures is in Article 194 of the Constitution. Article 105 reads as follows: “105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) 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. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

39 CAD Vol VIII 19 May, 1949 Draft Article 85

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(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

63Copy pinpoint63. Article 105 of the Constitution has four clauses. Clause (1) declares that there shall be freedom of speech in Parliament. This freedom is subject to the Constitution and to the rules and standing orders regulating the procedure in Parliament. Therefore, the freedom of speech in Parliament would be subject to the provisions that regulate its procedure framed under Article 118. It is also subject to Article 121 which restricts Parliament from discussing the conduct of any Judge of the Supreme Court or of a High Court in the discharge of their duties except upon a motion for presenting an address to the President praying for the removal of the Judge. The freedom of speech guaranteed in Parliament under Article 105(1) is distinct from that guaranteed under Article 19(1)(a). In Alagaapuram R Mohanraj v. TN Legislative Assembly40 this Court delineated the differences in these freedoms as follows: a. While the fundamental right of speech guaranteed under Article 19(1)(a) inheres in every citizen, the freedom of speech contemplated under Articles 105 and 194 is not available to every citizen but only to a member of the legislature; b. Article 105 is available only during the tenure of the membership of those bodies. On the other hand, the fundamental right under Article 19(1)(a) is inalienable; c. Article 105 is limited to the premises of the legislative bodies. Article 19(1)(a) has no such geographical limitations; and d. Article 19(1)(a) is subject to reasonable restrictions which are compliant with Article 19(2). However, the right of free speech available to a legislator under Articles 105 or 194 is not subject to such limitations. That an express provision is made for freedom of speech in Parliament in clause (1) of Article 105 suggests that this freedom is independent of the freedom of speech

40 [2016] 6 SCR 611 : (2016) 6 SCC 82

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conferred by Article 19 and is not restricted by the exceptions contained therein.

64Copy pinpoint64. Clause (2) of Article 105 has two limbs. The first prescribes that a member of Parliament shall not be liable before any court in respect of “anything said or any vote given” by them in Parliament or any committee thereof. The second limb prescribes that no person shall be liable before any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, vote or proceedings. The vote given by a member of Parliament is an extension of speech. Therefore, the freedom of a member of Parliament to cast a vote is also protected by the freedom of speech in Parliament. In Tej Kiran Jain v. N Sanjeeva Reddy,41 a six-judge bench of this Court held that Article 105(2) confers immunity in respect of “anything said” so long as it is “in Parliament.” Therefore, the immunity is qualified by the fact that it must be attracted to speech during the conduct of business in Parliament. This Court held that the word “anything” is of the widest import and is equivalent to “everything”. It is only limited by the term “in Parliament”.

65Copy pinpoint65. Clauses (1) and (2) explicitly guarantee freedom of speech in Parliament. Clause (1) is a positive postulate which guarantees freedom of speech whereas Clause (2) is an extension of the same freedom postulated negatively. It does so by protecting the speech, and by extension a vote, from proceedings before a court. Freedom of speech in the Houses of Parliament and their committees is a necessary privilege, essential to the functioning of the House. As we have noted above, the privilege of free speech in the House of Parliament or Legislature can be traced to the struggle of the Indian legislators and was granted in progression by the colonial government. This privilege is not only essential to the ability of Parliament and its members to carry out their duties, but it is also at the core of the function of a democratic legislative institution. Members of Parliament and Legislatures represent the will of the people and their aspirations. The Constitution was adopted to have a modernizing influence. The Constitution is intended to meet the aspirations of the people, to eschew an unjust society premised on social hierarchies and discrimination, and to facilitate the path towards an egalitarian

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society. Freedom of speech in Parliament and the legislatures is an arm of the same aspiration so that members may express the grievances of their constituents, express diverse perspectives and ventilate the perspectives of their constituents. Freedom of speech in Parliament ensures that the government is held accountable by the House. In Kalpana Mehta (supra) one of us (DY Chandrachud, J) had occasion to elucidate the importance of this privilege: “181. […] Parliament represents collectively, through the representative character of its Members, the voice and aspirations of the people. Free speech within Parliament is crucial for democratic governance. It is through the fearless expression of their views that Parliamentarians pursue their commitment to those who elect them. The power of speech exacts democratic accountability from elected governments. The free flow of dialogue ensures that in framing legislation and overseeing government policies, Parliament reflects the diverse views of the electorate which an elected institution represents.

182. The Constitution recognises free speech as a fundamental right in Article 19(1)(a). A separate articulation of that right in Article 105(1) shows how important the debates and expression of view in Parliament have been viewed by the draftspersons. Article 105(1) is not a simple reiteration or for that matter, a surplusage. It embodies the fundamental value that the free and fearless exposition of critique in Parliament is the essence of democracy. Elected Members of Parliament represent the voices of the citizens. In giving expression to the concerns of citizens, Parliamentary speech enhances democracy. […]” (emphasis supplied)

66Copy pinpoint66. Notably, unlike the House of Commons in the UK, India does not have ‘ancient and undoubted’ rights which were vested after a struggle between Parliament and the King. On the contrary, privileges were always governed by statute in India. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution. However, while the drafters of the Constitution expressly envisaged the freedom of speech in Parliament, they left the other privileges to be decided by Parliament through legislation.

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Clause (3) of Article 105 states that in respect of privileges not falling under Clauses (1) and (2) of Article 105, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law. Until Parliament defines these privileges, they are to be those which the House and its members and committees enjoyed immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. Section 15 reads as follows: “15. Amendment of article 105.-In article 105 of the Constitution, in clause (3), for the words “shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution”, the words, figures and brackets “shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978” shall be substituted.”

67Copy pinpoint67. The privileges enjoyed by the House and its members and committees immediately before the coming into force of Section 15 of the Forty-fourth amendment to the Constitution were those enjoyed by the House of Commons in the UK at the commencement of the Constitution of India. This was also the case with Clause (3) of Article 194 which was amended by Section 26 of the Forty- fourth amendment to the Constitution. The reference to the House of Commons was accepted by the Constituent Assembly for two reasons. First, Indian legislators did not enjoy any privilege prior to the commencement of the Constitution and therefore a reference to the Dominion Parliament would leave the House with virtually no privileges. Second, it was not possible to make an exhaustive list of privileges at the time nor was it preferable to enlist such a long list as a schedule to the Constitution.42

68Copy pinpoint68. Clause (3) allows Parliament to enact a law on its privileges from time to time. It may be noted here that the House of Commons in

42 See reply of Sir Alladi Krishnaswami Ayyar and Dr BR Ambedkar to the Constituent Assembly, CAD Vol VIII 19 May 1949 Draft Article 85 and Vol X 16 October 1949 Draft Article 85.

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the UK does not create new privileges.43 Its privileges are those which have been practiced by the House and have become ancient and undoubted.

69Copy pinpoint69. Further, unlike the House of Commons in the UK, Parliament in India cannot claim power of its own composition. The extent of privileges in India has to be within the confines of the Constitution. Within this scheme, the Courts have jurisdiction to determine whether the privilege claimed by the House of Parliament or Legislature in fact exists and whether they have been exercised correctly. In a steady line of precedent, this Court has held that in the absence of legislation on privileges, the Parliament or Legislature may only claim such privilege which belonged to the House of Commons at the time of the commencement of the Constitution and that the House is not the sole judge to decide its own privilege.

70Copy pinpoint70. When the Parliament or Legislatures enact a law on privileges, such a law would be subject to the scrutiny of Part III of the Constitution. The interplay between Part III of the Constitution and Article 105(3) arose in the decision of this Court in MSM Sharma v. Sri Krishna Sinha,44 where a Constitution bench speaking through SR Das, CJ held that the privileges of the House of Parliament under Clause (3) of Article 105 are those which belonged to the House of Commons in the UK at the commencement of the Constitution which would prevail over the fundamental rights guaranteed to citizens under Article 19(1)(a) of the Constitution. However, if the Parliament were to enact a law codifying its privilege then it may not step over the fundamental rights of citizens by virtue of Article 13 of the Constitution. K Subba Rao, J (as the learned Chief Justice then was) dissented from the majority and held that the import of privileges held by the House of Commons in the UK was only a transitory provision till the Parliament or legislatures enact a law codifying their respective privileges. Therefore, Justice Subba Rao held in his dissent that the legislature cannot run roughshod over the fundamental rights of citizens who in theory have retained their rights and only given a part of it to the legislature.

43 It was agreed in 1704 that no House of Parliament shall have power, by any vote or declaration, to create new privilege that is not warranted by known laws and customs of Parliament. The symbolic petition by the Speaker of the House of Commons to the crown claiming the ‘ancient and undoubted’ privileges of the House of Commons are therefore not to be changed. 44 [1959] Suppl. 1 SCR 806 : AIR 1959 SC 395

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71Copy pinpoint71. In Special Refence No. 1 of 1964,45 a seven-judge Bench of this Court opined on the privileges of the State Legislature upon a Presidential reference. The reference was in the aftermath of the Speaker of the UP Legislative Assembly directing the arrest and production of two judges of the High Court. The two judges had interfered with a resolution to administer reprimand to a person who had published a pamphlet libelling one of the members of the Assembly. Gajendragadkar, CJ speaking for the majority did not disagree with the decision in MSM Sharma (supra) which held that Article 105(3) and Article 194(3) would prevail over Article 19(1)(a) of the Constitution. However, the Court held that Article 21 was to prevail over Articles 105(3) and 194(3) in a conflict between the two. The Court held that the Parliament or Legislature is not the sole judge of its privileges and the courts have the power to enquire if a particular privilege claimed by the legislature in fact existed or not, by consulting the privileges of the Commons. The determination of privileges, the Court held, and whether they conform to the parameters of the Constitution is a question that must be answered by the courts. This Court opined that: “37. The next question which faces us arises from the preliminary contention raised by Mr Seervai that by his appearance before us on behalf of the House, the House should not be taken to have conceded to the Court the jurisdiction to construe Article 194(3) so as to bind it. As we have already indicated, his stand is that in the matter of privileges, the House is the sole and exclusive judge at all stages. […] …

42. In coming to the conclusion that the content of Article 194(3) must ultimately be determined by courts and not by the legislatures, we are not unmindful of the grandeur and majesty of the task which has been assigned to the legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our

45 [1965] 1 SCR 413 : 1964 SCC OnLine SC 21

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country, and that naturally gives the legislative chambers a high place in the making of history today. […]” (emphasis supplied)

72Copy pinpoint72. The opinion in Special Reference No. 1 of 1964 (supra) was further affirmed by another seven-judge bench of this Court in State of Karnataka v. Union of India46 which held that whenever a question arises whether the House has jurisdiction over a matter under its privileges, the adjudication of such a claim is vested exclusively in the courts. Relying on Special Reference No. 1 of 1964 (supra) and State of Karnataka (supra) a Constitution bench of this Court in Raja Ram Pal (supra) held that the court has the authority and jurisdiction to examine if a privilege asserted by the House (or even a member by extension) in fact accrues under the Constitution. Further, in Amarinder Singh (supra) a Constitution bench of this Court held that the courts are empowered to scrutinise the exercise of privileges by the House.47 The interplay between fundamental rights of citizens and the privileges of the Houses of Parliament or Legislature is pending before a Constitution bench of this Court in N Ravi v. Speaker, Legislative Assembly Chennai.48

73Copy pinpoint73. Clause (4) of Article 105 extends the freedoms in the above clauses to all persons who by virtue of the Constitution have a right to speak in Parliament. The four clauses in Articles 105 and 194 form a composite whole which lend colour to each other and together form the corpus of the powers, privileges and immunities of the Houses of Parliament or Legislature, as the case may be, and of members and committees.

74Copy pinpoint74. We have explored the trajectory of parliamentary privileges, especially that of freedom of speech in the Indian legislatures. It has been a timeless insistence of the legislators that their freedom of speech to carry out their essential legislative functions be protected and sanctified. Whereas the drafters of our Constitution have expressly guaranteed the freedom of speech in Parliament and legislature, they left the other privileges uncodified.

46 [1978] 2 SCR 1 : (1977) 4 SCC 608, para 63 47 (2010) 6 SCC 113, para 54 48 WP (Crl) No. 206-210/2003 etc.

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75Copy pinpoint75. In a consistent line of precedent this Court has held that – firstly, Parliament or the state legislature is not the sole judge of what privileges it enjoys and secondly, Parliament or legislature may only claim privileges which are essential and necessary for the functioning of the House. We have explored the first of these limbs above. We shall now analyse the jurisprudence on the existence, extent and exercise of privileges by the House of Parliament, its members and committees. II. Parliamentary privilege as a collective right of the House

76Copy pinpoint76. According to Erskine May, parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the “High Court of Parliament” and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.49 The term ‘High Court of Parliament’ dates back to the time when all powers of legislating and dispensing justice vested in the Monarch who in turn divested them to a body which would carry out the function of the legislature as the King sitting in the High Court of Parliament. To that extent, the term is redundant in the Indian context where the Constitution is supreme and the power of the Parliament over its domain flows from and is defined by the Constitution. However, the definition provides an authoritative guide to understanding the meaning and remit of parliamentary privileges. The definition evidently divides privileges into two constituent elements. The first is the sum of rights enjoyed by the House of Parliament and the second is the rights enjoyed by members of the House individually. Rights and immunities such as the power to regulate its own procedure, the power to punish for contempt of the House or to expel a member for the remainder of the session of the House, belong to the first element of privileges held by the House as a collective body for its proper functioning, protection of members, and vindication of its own authority and dignity. The second element of rights exercised individually by members of the House includes freedom of speech and freedom from arrest, among others.

49 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th ed. (2019) 239.

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77Copy pinpoint77. The privilege exercised by members individually is in turn qualified by its necessity, in that the privilege must be such that “without which they could not discharge their functions.” We shall elucidate this limb later in the course of this judgment. These privileges enjoyed by members of the House individually are a means to ensure and facilitate the effective discharge of the collective functions of the House.⁵⁰ It must therefore be noted that whereas the privileges enjoyed by members of the House exceed those possessed by other bodies or individuals, they are not absolute or unqualified. The privilege of an individual member only extends insofar as it aids the House to function and without which the House may not be able to carry out its functions collectively.

78Copy pinpoint78. Subhash C Kashyap has explained parliamentary privileges as they may be understood in the Indian context. 51 In his book on parliamentary procedure, the author has opined as follows: “[…] In Parliamentary parlance the term ‘privilege means certain rights and immunities enjoyed by each House of Parliament and its Committees collectively, and by the members of each House individually without which they cannot discharge their functions efficiently and effectively. The object of parliamentary privilege is to safeguard the freedom, the authority and the dignity of the institution of Parliament and its members. They are granted by the Constitution to enable them to discharge their functions without any let or hindrance. Parliamentary Privileges do not exempt members from the obligations to the society which apply to other citizens. Privileges of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the applications of the laws of the land unless there are good and sufficient reasons in the interest of Parliament itself to do so. The fundamental principle is that all citizens including members of Parliament should be treated equally before the law. The privileges

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are available to members only when they are functioning in their capacity as members of Parliament and performing their parliamentary duties.” (emphasis supplied)

79Copy pinpoint79. The understanding which unequivocally emerges supports the claim that the privileges which accrue to members of the House individually are not an end in themselves. The purpose which privileges serve is that they are necessary for the House and its committees to function. Therefore, we may understand parliamentary privileges as those rights and immunities which allow the orderly, democratic, and smooth functioning of Parliament and without which the essential functioning of the House would be violated.

80Copy pinpoint80. The framers of the Constitution intended to establish a responsible, responsive and representative democracy. The value and importance of such a democracy weighed heavily on the framers of the Constitution given the history of an oppressive colonial government to which India had been subjected. The history of parliamentary democracy shows that the colonial government denied India a responsible government where initially Indians were kept out of legislating on laws which would be enforced on its diverse social tapestry. Even when Indians were allowed in legislatures, a responsive government which could be accountable to the people in a meaningful way was yet a distant reality in the colonial period. The ability of the legislature in turn to scrutinise the actions of the executive was effaced and despite the statutory guarantee of freedom of speech for members of the House in the Government of India Act 1919, the guarantee remained illusory to the extent that many subjects were restricted from being discussed in the legislatures.

81Copy pinpoint81. In that sense, the foundations of a deliberative democracy premised on responsibility, responsiveness, and representation sought to ensure that the executive government of the day is elected by and responsible to the Parliament or Legislative Assemblies which comprise of elected representatives. These representatives would be able to express their views on behalf of the citizens and ensure that the government lends ear to their aspirations, complaints and grievances. This aspect of the functioning of the House is essential to sustain a meaningful democracy. This necessitates that members of the House be able to attend the House and thereafter speak their

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minds without fear of being harassed by the executive or any other person or body on the basis of their actions as members of the House in the exercise of their duties. In the absence of this feature Parliament and the state legislatures would lose the essence of their representative character in a democratic polity.

82Copy pinpoint82. The privileges enshrined under Article 105 and Article 194 of the Constitution are of the widest amplitude but to the extent that they serve the aims for which they have been granted. The framers of the Constitution would not have intended to grant to the legislatures those rights which may not serve any purpose for the proper functioning of the House. The privileges of the members of the House individually bear a functional relationship to the ability of the House to collectively fulfil its functioning and vindicate its authority and dignity. In other words, these freedoms are necessary to be in furtherance of fertilizing a deliberative, critical, and responsive democracy. In State of Kerala v. K Ajith,52 one of us (DY Chandrachud, J) held that a member of the legislature, the opposition included, has a right to protest on the floor of the legislature. However, the said right guaranteed under Article 105(1) of the Constitution would not exclude the application of ordinary criminal law against acts not in direct exercise of the duties of the individual as a member of the House. This Court held that the Constitution recognises privileges and immunities to create an environment in which members of the House can perform their functions and discharge their duties freely. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal.

83Copy pinpoint83. MN Kaul and SL Shakdher have in their celebrated work on the Practice and Procedure of Parliament endorsed this view by stating that⁵³ “In modern times, parliamentary privilege has to be viewed from a different angle than in the earlier days of the struggle of Parliament against the executive authority. Privilege at that time was regarded as a protection of the members of

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Parliament against an executive authority not responsible to Parliament. The entire background in which privileges of Parliament are now viewed has changed because the Executive is now responsible to Parliament. The foundation upon which they rest is the maintenance of the dignity and independence of the House and of its members.” (emphasis supplied) The privileges enjoyed by members of the House are tethered intrinsically to the functioning of the House collectively. A House of Parliament or Legislature functions through the collective will of its individual members. These members acting as constituents of the House may not claim any privilege or immunity unconnected with the working of the entire House.

84Copy pinpoint84. While some cherished freedoms exercised individually by members of the House, including the freedom of speech, have been undeniably understood to be essential to the functioning of the House as a whole, other exercises such as damaging public property or committing violence are not and cannot be deemed to have immunity. The privileges and immunities enshrined in Articles 105 and 194 of the Constitution with respect to Houses of Parliament and the Legislatures, their members and committees, respectively belong to the House collectively. The exercise of the privileges individually by members must be tested on the anvil of whether it is tethered to the healthy and essential functioning of the House. III. Necessity test to claim and exercise a privilege

85Copy pinpoint85. Having established that the privileges and immunities exercisable by members of the House individually must be tethered to the functioning of the House we must now explore which privileges may be deemed to accrue to the House collectively and by extension to individual members. In State of Karnataka (supra) a seven-Judge bench of this Court speaking through MH Beg, CJ held that the powers under Article 194 (as well as Article 105) are those which depend upon and are necessary for the conduct of the business of each House. In that sense, these powers may not even apply to all the privileges which accrue to the House of Commons but may not be necessary for the functioning of the House. The learned Chief Justice stated:

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“57. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the “powers” meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it could not be contended that each House of a State Legislature has the same share of legislative power as the House of Commons has, as a constituent part of a completely sovereign legislature. Under our law it is the Constitution which is sovereign or supreme. The Parliament as well as each Legislature of a State in India enjoys only such legislative powers as the Constitution confers upon it. Similarly, each House of Parliament or State Legislature has such share in legislative power as is assigned to it by the Constitution itself. […]” (emphasis supplied)

86Copy pinpoint86. This Court held that in India the source of authority is the Constitution which derives its sovereignty from the people. The powers and privileges claimed by a House cannot traverse beyond those which are permissible under the Constitution. The Constitution only allows exercise of those powers, privileges, and immunities which are essential to the functioning of the House or a committee thereof. MN Kaul and SL Shakdher have opined that54 “In interpreting these privileges, therefore, regard must be had to the general principle that the privileges of Parliament are granted to members in order that “they may be able to perform their duties in Parliament without let or hindrance”. They apply to individual members “only insofar as they are necessary in order that the House may freely perform its functions. They do not discharge the member from the obligations to society which apply to him as much and perhaps more closely in that capacity, as they apply to other subjects”. Privileges

54 MN Kaul and SL Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat, Metropolitan Book Co. Pvt. Ltd., 7th ed., 229.

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of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the application of laws unless there are good and sufficient reasons in the interest of Parliament itself to do so.” (emphasis supplied)

87Copy pinpoint87. The evolution of parliamentary privileges as well as the jurisprudence of this Court establish that members of the House or indeed the House itself cannot claim privileges which are not essentially related to their functioning. To give any privilege unconnected to the functioning of the Parliament or Legislature by necessity is to create a class of citizens which enjoys unchecked exemption from ordinary application of the law. This was neither the intention of the Constitution nor the goal of vesting Parliament and Legislature with powers, privileges and immunities.

88Copy pinpoint88. In Amarinder Singh (supra) a Constitution bench of this Court held that the test to scrutinise the exercise of privileges is whether they were necessary to safeguard the integrity of legislative functions. KG Balakrishnan, CJ after exploring a wealth of material on the subject opined that privileges serve the distinct purpose of safeguarding the integrity of the House. This Court held that privileges are not an end in themselves but must be exercised to ensure the effective exercise of legislative functions. The Chief Justice observed that: “35. The evolution of legislative privileges can be traced back to medieval England when there was an ongoing tussle for power between the monarch and Parliament. In most cases, privileges were exercised to protect the Members of Parliament from undue pressure or influence by the monarch among others. Conversely, with the gradual strengthening of Parliament there were also some excesses in the name of legislative privileges. However, the ideas governing the relationship between the executive and the legislature have undergone a sea change since then. In modern parliamentary democracies, it is the legislature which consists of the people’s representatives who are expected to monitor executive functions. This is achieved by embodying the idea of “collective responsibility” which entails that those

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who wield executive power are accountable to the legislature.

36. However, legislative privileges serve a distinct purpose. They are exercised to safeguard the integrity of legislative functions against obstructions which could be caused by members of the House as well as non- members. Needless to say, it is conceivable that in some instances persons holding executive office could potentially cause obstructions to legislative functions. Hence, there is a need to stress on the operative principles that can be relied on to test the validity of the exercise of legislative privileges in the present case. …

47. […] the exercise of legislative privileges is not an end in itself. They are supposed to be exercised in order to ensure that legislative functions can be exercised effectively, without undue obstructions. These functions include the right of members to speak and vote on the floor of the House as well as the proceedings of various Legislative Committees. In this respect, privileges can be exercised to protect persons engaged as administrative employees as well. The important consideration for scrutinising the exercise of legislative privileges is whether the same was necessary to safeguard the integrity of legislative functions. […].” (emphasis supplied)

89Copy pinpoint89. In Lokayukta, Justice Ripusudan Dayal v. State of MP, 55 a three-judge bench of this Court held that the scope of a privilege enjoyed by a House and its members must be tested on the basis of the necessity of the privilege to the House for its free functioning. This Court further held that members of the House cannot claim exemption from the application of ordinary criminal law under the garb of privileges which accrue to them as members of the House under the Constitution. P Sathasivam, CJ opined that

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“51. The scope of the privileges enjoyed depends upon the need for privileges i.e. why they have been provided for. The basic premise for the privileges enjoyed by the Members is to allow them to perform their functions as Members and no hindrance is caused to the functioning of the House. […]

52. It is clear that the basic concept is that the privileges are those rights without which the House cannot perform its legislative functions. They do not exempt the Members from their obligations under any statute which continue to apply to them like any other law applicable to ordinary citizens. Thus, enquiry or investigation into an allegation of corruption against some officers of the Legislative Assembly cannot be said to interfere with the legislative functions of the Assembly. No one enjoys any privilege against criminal prosecution. …

76. It is made clear that privileges are available only insofar as they are necessary in order that the House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Special Police Establishment is for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation.” (emphasis supplied)

90Copy pinpoint90. The necessity test for ascertaining parliamentary privileges has struck deep roots in the Indian context. We do not need to explore the well- established jurisprudence on the necessity test in other jurisdictions beyond the above exposition of Indian jurisprudence on the subject at this juncture. The evolution of parliamentary privileges in various

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parliamentary jurisdictions has shown a consistent pattern that when an issue involving privileges arises, the test applied is whether the privilege claimed is essential and necessary to the orderly functioning of the House or its committee. We may also note that the burden of satisfying that a privilege exists and that it is necessary for the House to collectively discharge its function lies with the person or body claiming the privilege. The Houses of Parliament or Legislatures, and the committees are not islands which act as enclaves shielding those inside from the application of ordinary laws. The lawmakers are subject to the same law that the law-making body enacts for the people it governs and claims to represent.

91Copy pinpoint91. We therefore hold that the assertion of a privilege by an individual member of Parliament or Legislature would be governed by a twofold test. First, the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator. G. Bribery is not protected by parliamentary privilege I. Bribery is not in respect of anything said or any vote given

92Copy pinpoint92. 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. The test of intrinsic relation to the functioning of the House and the necessity test evolved by this Court in the context of determining the remit of privileges under Articles 105(3) and 194(3) must weigh while delineating the privileges under Clauses (1) and (2) of the provisions as well. When this Court is called upon to answer a question of interpretation of a provision of the Constitution, it must interpret the text in a manner that does not do violence to the fabric of the Constitution. This Court’s opinion in PV Narasimha Rao (supra) 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 “(2) 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

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publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.”

93Copy pinpoint93. In State (NCT of Delhi) v Union of India,56 Dipak Misra, CJ observed that the Court should interpret a constitutional provision and construe the meaning of specific words in the text in the context in which the words occur by referring to the other words of the said provision. This Court held in that case that the meaning of the word “any” can be varied depending on the context in which it appears and that the words “any matter” was not to be understood as “every matter”.

94Copy pinpoint94. The decision in Tej Kiran Jain (supra) interpreted the word “anything” in Clause (1) of Article 105 to be of the widest amplitude and only subject to the words appearing after it which were “in Parliament.” The clause does give wide freedom of speech in Parliament. The word ‘anything’ cannot be interpreted to allow interference of the court in determining if the speech had relevance to the subject it was dealing with at the time the speech was made. In Tej Kiran Jain (supra) the followers of a religious head who had made a speech on untouchability filed a suit in the High Court seeking damages for defamation alleged to have been committed in the Lok Sabha during a calling attention motion on the speech. This Court held that the Court cannot dissect a speech made in Parliament and adjudicate if the speech has a direct relation to the subject matter before it. Parliament has absolute control over which matters it directs its attention towards and thereafter the members or persons at liberty to speak may not be subjected to the fear of prosecution against anything that they may say in the House.

95Copy pinpoint95. That context evidently changes in Clause (2) of Article 105 which gives immunity to members of the House and the committees thereof in any proceeding in any court in respect of “anything” said or any vote given in the House. MH Beg, CJ in State of Karnataka (supra) had foreseen a situation where a criminal act may be committed in the House and had observed that it could not be protected under the Constitution. The Chief Justice opined that : “63. […] A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can,

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but it can proceed quasi-judicially in cases of contempts of its authority and take up motions concerning its “privileges” and “immunities” because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings. For example, the jurisdiction to try a criminal offence, such as murder, committed even within a House vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature. […]” (emphasis supplied)

96Copy pinpoint96. In K Ajith (supra) a member of the Kerala Legislative Assembly was accused of climbing over the Speaker’s dais and causing damage to property during the presentation of the budget by the Finance Minister of the State. The question which arose before this Court was whether the member could be prosecuted before a court of law for his conduct inside the House of the Legislature. This Court speaking through one of us (DY Chandrachud, J) after exploring the evolution of law in this regard in the UK observed that: “36. […] it is evident that a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity only if the action bears nexus to the effective participation of the member in the House.”

97Copy pinpoint97. This Court further held that privileges accruing inside the legislature are not a gateway to claim exemption from the general application of the law: “65. 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. The entire foundation upon which the application for

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withdrawal under Section 321 was moved by the Public Prosecutor is based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seems to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law.” (emphasis supplied)

98Copy pinpoint98. In Lokayukta, Justice Ripusudan Dayal (supra) criminal proceedings were initiated against administrative officers of the Madhya Pradesh Legislative Assembly for allegedly engaging in corruption and financial irregularity. The Speaker of the Assembly initiated proceedings for breach of privilege against the Lokayukta and vigilance authorities. This Court while holding that initiation of criminal proceedings for corruption may not amount to a breach of privilege had opined that: “48. It is clear that in the matter of the application of laws, particularly, the provisions of the Lokayukt Act and the Prevention of Corruption Act, 1988, insofar as the jurisdiction of the Lokayukt or the Madhya Pradesh Special Establishment is concerned, all public servants except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act fall in the same category and cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. […].

49. As rightly submitted by Mr K.K. Venugopal, in India, there is the rule of law and not of men and, thus, there is primacy of the laws enacted by the legislature which do not discriminate between persons to whom such laws would apply. The laws would apply to all such persons unless the law itself makes an exception on a valid classification. No individual can claim privilege against the application of laws and for liabilities fastened on commission of a prohibited act.” (emphasis supplied)

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99Copy pinpoint99. The principle which emerges from the above cases is that the privilege of the House, its members and the committees is neither contingent merely on location nor are they merely contingent on the act in question. A speech made in Parliament or Legislature cannot be subjected to any proceedings before any court. However, other acts such as damaging property or criminal acts may be subjected to prosecution despite being within the precincts of the House. Clause (2) of Article 105 grants immunity “in respect of anything” said or any vote given. The extent of this immunity must be tested on the anvil of the tests laid down above. The ability of a member to speak is essentially tethered to the collective functioning of the House and is necessary for the functioning of the House. A vote, which is an extension of the speech, may itself neither be questioned nor proceeded against in a court of law. The phrase “in respect of” is significant to delineate the ambit of the immunity granted under Clause (2) of Article 105.

100Copy pinpoint100. In PV Narasimha Rao (supra) 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. As we have noted above, the interpretation of a phrase which appears in a provision cannot be interpreted in a way that does violence to the object of the provision. The majority in PV Narasimha Rao (supra) 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. This understanding of the provision is overbroad and presumptive of enhanced privileges translating to better functioning of members of the House.

101Copy pinpoint101. 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

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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. Therefore, the extent of privilege exercisable by a member individually must satisfy the two fold test laid down in Part F of this judgment namely its tether to the collective functioning of the House and its necessity.

102Copy pinpoint102. The words “in respect of” in Clause (2) of Article 105 apply to the phrase “anything said or any vote given,” and in the latter part to a publication by or with the authority of the House. We may not interpret the words “anything” or “any” without reading the operative word on which it applies i.e. “said” and “vote given” respectively. The words “anything said” and “any vote given” apply to an action which has been taken by a person who has the right to speak or vote in the House or a committee thereof. This means that a member or person must have exercised their right to speak or abstained from speaking inside the House or committee when the occasion arose. Similarly, a person or member must have exercised their option of voting in favour, against, or in abstention to claim immunity under Articles 105(2) and 194(2).

103Copy pinpoint103. The words “anything” and “any” when read with their respective operative words mean that a member may claim immunity to say as they feel and vote in a direction that they desire on any matter before the House. These are absolutely outside the scope of interference by the courts. The wide meaning of “anything” and “any” read with their companion words connotes actions of speech or voting inside the House or committee which are absolute. The phrase “in respect of” applies to the collective phrase “anything said or any vote given.” The words “in respect of” means arising out of or bearing a clear relation to. This may not be overbroad or be interpreted to mean anything which may have even a remote connection with the speech or vote given. We, therefore, cannot concur with the majority judgment in PV Narasimha Rao (supra). II. The Constitution envisions probity in public life

104Copy pinpoint104. 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. Hence, the phrase “in respect of”

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must have a meaning consistent with the purpose of privileges and immunities. 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.

105Copy pinpoint105. The minority judgment in PV Narasimha Rao (supra) held that the words “in respect of” must be understood as “arising out of” and that a bribe taken by a member of the House cannot be deemed as arising out of his vote. The minority opined that: “46. […] The expression “in respect of” in Article 105(2) has, therefore, to be construed keeping in view the object of Article 105(2) and the setting in which the expression appears in that provision.

47. … the object of the immunity conferred under Article 105(2) is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105(2) which would enable a Member of Parliament to claim immunity from prosecution in a criminal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament or any committee thereof and thereby place such Members above the law

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would not only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the constitutional provisions the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. (See: Sub-Committee on Judicial Accountability v. Union of India [(1991) 4 SCC 699] SCC at p. 719.) […]” (emphasis supplied)

106Copy pinpoint106. The minority then 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 minority goes on to hold that: “47. […] Such an anomalous situation would be avoided if the words “in respect of” in Article 105(2) are construed to mean “arising out of”. If the expression “in respect of” is thus construed, the immunity conferred under Article 105(2) would be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been given by a Member in Parliament or any committee thereof. 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 of the cause of action for the proceedings giving rise to the liability. The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament even though it may have a connection with the speech made or the vote given by the Member if such an act gives rise to a liability which arises independently and does not depend on the making of the speech or the giving of vote in Parliament by the Member. Such an independent liability cannot be regarded as liability in respect of anything said or vote given by the Member in Parliament. The liability for which immunity can be claimed under Article 105(2) is the liability that has arisen as a consequence of the speech that has been made or the vote that has been given in Parliament.”

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107Copy pinpoint107. 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 (supra) 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. Interpreting the phrase “in respect of” to mean “arising out of”, the minority concluded that the offence of bribery is not contingent on the performance of the illegal promise. The minority observed that: “50. … the expression “in respect of” in Article 105(2) raises the question: Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament? In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. 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 money will be treated to have committed the offence even when he defaults in the illegal bargain. For proving the offence of bribery all that is required to be established is that the offender has received or agreed to receive money for a promise to act in a certain way and it is not necessary to go further and prove that he actually acted in that way.”

108Copy pinpoint108. A Constitution bench of this Court in Kihoto Hollohan v. Zachillhu,57 while deciding on the validity of the Constitution (Fifty Second Amendment) Act 1985 which introduced the Tenth schedule to the Indian Constitution opined that the freedom of speech in Parliament

57 [1992] 1 SCR 686 : 1992 Supp (2) SCC 651

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under clause (2) of Article 105 is not violated. This Court understood the provision to necessarily mean that the politically sinful act of floor crossing is neither permissible nor immunized under the Constitution. This Court held that: “40. The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any ‘Court’ for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. …

43. Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften (sic) the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.” III. Courts and the House exercise parallel jurisdiction over allegations of bribery

109Copy pinpoint109. Mr Raju Ramachandran, learned senior advocate on behalf of the Petitioner, has argued that bribery has been treated as a breach of privilege by the House which has used its powers to dispense discipline over bribe-taking members. He argues that immunity for a vote, speech or conduct in the House of Parliament does not in any manner leave culpable members blameless or free from sanction. Such members have been punished including being expelled by the

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House. Mr Ramachandran cites many examples of actions taken by the House against its members who were found to have received bribes. In our exposition of the history of parliamentary privileges in India, we have illustrated how bribery was initially deemed to be a breach of privilege by the House of Commons in the UK. Based on the position of law in the UK the British government was uncertain about the position in India but assumed it to be governed as a matter of breach of privilege in the absence of an express statutory enactment. The Report of the Reforms Enquiry Committee in 1924 had recommended bribery to be made a penal offence so that members may be prosecuted for crimes before a court of law.

110Copy pinpoint110. The issue of bribery is not one of exclusivity of jurisdiction by the House over its bribe-taking members. The purpose of a House acting against a contempt by a member for receiving a bribe serves a purpose distinct from a criminal prosecution. The purpose of the proceedings which a House may conduct is to restore its dignity. Such a proceeding may result in the expulsion from the membership of the House and other consequences which the law envisages. Prosecution for an offence operates in a distinct area involving a violation of a criminal statute. The power to punish for criminal wrongdoing emanates from the power of the state to prosecute offenders who violate the criminal law. The latter applies uniformly to everyone subject to the sanctions of the criminal law of the land. The purpose, consequences, and effect of the two jurisdictions are separate. A criminal trial differs from contempt of the House as it is fully dressed with procedural safeguards, rules of evidence and the principles of natural justice.

111Copy pinpoint111. We therefore disagree with Mr Ramachandran that the jurisdiction of the House excludes that of the criminal court for prosecuting an offence under the criminal law of the land. We hold this because of our conclusion above that bribery is not immune under clause (2) of Article 105. A member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote. This action may bring indignity to the House of Parliament or Legislature and may also attract prosecution. What it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or Legislature.

112Copy pinpoint112. We may refer to the opinion of SC Agrawal, J who arrived at the same view in which he was in the minority:

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“45. It is no doubt true that a Member who is found to have accepted bribe in connection with the business of Parliament can be punished by the House for contempt. But that is not a satisfactory solution. In exercise of its power to punish for contempt the House of Commons can convict a person to custody and may also order expulsion or suspension from the service of the House. There is no power to impose a fine. The power of committal cannot exceed the duration of the session and the person, if not sooner discharged by the House, is immediately released from confinement on prorogation. (See: May’s Parliamentary Practice, 21st Edn., pp. 103, 109 and 111.) The Houses of Parliament in India cannot claim a higher power. The Salmon Commission has stated that “whilst the theoretical power of the House to commit a person into custody undoubtedly exists, nobody has been committed to prison for contempt of Parliament for a hundred years or so, and it is most unlikely that Parliament would use this power in modern conditions”. (para 306) The Salmon Commission has also expressed the view that in view of the special expertise that is necessary for this type of inquiry the Committee of Privileges do not provide an investigative machinery comparable to that of a police investigation.” (emphasis supplied)

113Copy pinpoint113. Therefore, we hold that clause (2) of Article 105 does not grant immunity against bribery to any person as the receipt of or agreement to receive illegal gratification is not “in respect of” the function of a member to speak or vote in the House. Prosecution for bribery is not excluded from the jurisdiction of the criminal court merely because it may also be treated by the House as contempt or a breach of its privilege. IV. Delivery of results is irrelevant to the offence of bribery

114Copy pinpoint114. Another aspect that arises for consideration is the stage at which the offence of bribery crystallizes. It has been urged by the Solicitor General that the offence is complete outside the legislature and is ‘independent’ of the speech or the vote. Therefore, the question of

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privilege does not arise in the first place and the question is answered by the provisions of the Prevention of Corruption Act, 1988. Similarly, Mr Gopal Sankarnarayan, learned senior counsel has submitted that the offence of bribery is complete on receipt of the bribe well before the vote is given or speech made in Parliament. It has been urged that the performance of the promise is irrelevant to the offence being made out, and hence, the distinction made in PV Narasimha Rao (supra) is entirely artificial.

115Copy pinpoint115. Interestingly, the judgment of the majority in PV Narasimha Rao (supra) did not consider this question at all. The minority judgment, on the other hand, discusses this aspect and 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. Agarwal, J observed: “50. The construction placed by us on the expression “in respect of” in Article 105(2) raises the question: Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament? In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. 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 money will be treated to have committed the offence even when he defaults in the illegal bargain. For proving the offence of bribery all that is required to be established is that the offender has received or agreed to receive money for a promise to act in a certain way and it is not necessary to go further and prove that he actually acted in that way.” (emphasis supplied)

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116Copy pinpoint116. Section 7 of the Prevention of Corruption Act, 1988 reads as follows: “7. Offence relating to public servant being bribed. — Any public servant who, — (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. —For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration. —A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section. Explanation 2.—For the purpose of this section,— (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another

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person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party.” (emphasis supplied)

117Copy pinpoint117. Under Section 7 of the PC Act, the mere “obtaining”, “accepting” or “attempting” to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The first explanation to the provision further strengthens such an interpretation when it expressly states that the “obtaining, accepting, or attempting” to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained.

118Copy pinpoint118. It is trite law that illustrations appended to a section are of value and relevance in construing the text of a statutory provision and they should not be readily rejected as repugnant to the section.58 The illustration to the first explanation aids us in construing the provision to mean that the offence of bribery crystallizes on the exchange of the bribe and does not require the actual performance of the act. It provides a situation where “A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section.” It is clear that regardless of whether S actually processes the ration card application on time, the offence of bribery is made out. Similarly, in the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete.

119Copy pinpoint119. Even prior to the amendment to the PC Act in 2017, Section 7 expressly delinked the offence of bribery from the actual performance

58 Justice GP Singh, Principles of Statutory Interpretation, 15th Ed. (2021), 136.

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of the act for which the undue advantage is received. The provision read as follows: “7. Public servant taking gratification other than legal remuneration in respect of an official act. — Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to seven years and shall also be liable to fine. Explanations. — … (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. …” (emphasis supplied)

120Copy pinpoint120. The unamended text of Section 7 of the PC Act also indicates that the act of “accepting”, “obtaining”, “agreeing to accept” or “agreeing to obtain” illegal gratification is a sufficient condition. The act for which the bribe is given does not need to be actually performed. This was further clarified by Explanation (d) to the provision. In explaining the phrase ‘a motive or reward for doing’, it was made clear that the person receiving the gratification does not need to intend to or be in a position to do or not do the act or omission for which the motive/reward is received.

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121Copy pinpoint121. In Chaturdas Bhagwandas Patel v. State of Gujarat59 a two- judge Bench of this Court reiterated that to constitute the offence of bribery, a public servant using his official position to extract illegal gratification is a sufficient condition. It is not necessary in such a case for the Court to consider whether the public servant intended to actually perform any official act of favour or disfavour. In the facts of the case, the public servant induced the complainant to give a bribe to get rid of a charge of abduction. It was later revealed that no complaint had even been registered against the complainant for the alleged abduction. However, the Court held that the mere demand and acceptance of the illegal gratification was sufficient, regardless of whether the recipient of the bribe performed the act for which the bribe was received.

122Copy pinpoint122. Recently, in Neeraj Dutta v. State (NCT of Delhi)60 a Constitution Bench listed out the constituent elements of the offence of bribery under Section 7 of the PC Act (as it stood before the amendment in 2017). Justice BV Nagarathna formulated the elements to constitute the offence: “5. The following are the ingredients of Section 7 of the Act: (i) the accused must be a public servant or expecting to be a public servant; (ii) he should accept or obtain or agrees to accept or attempts to obtain from any person; (iii) for himself or for any other person; (iv) any gratification other than legal remuneration; and (v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.” Consequently, the actual “doing or forbearing to do” the official act is not a constituent part of the offence. All that is required is that the illegal gratification should be obtained as a “motive or reward” for such an action or omission – whether it is actually carried out or not is irrelevant.

59 [1976] 3 SCR 1052 : (1976) 3 SCC 46 60 [2023] 2 SCR 997 : (2023) 4 SCC 731

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123Copy pinpoint123. During the course of the hearing, a hypothetical question arose in this regard. What happens in a situation when the bribe is exchanged within the precincts of the legislature? Would the offence now fall within the ambit of parliamentary privilege? This question appears to be ill-conceived. When this Court holds that the offence of bribery is complete on the acceptance or attempt to accept undue advantage and is not dependent on the speech or vote, it automatically pushes the offence outside the ambit of Articles 105(2) and 194(2). This is not because the acceptance of undue advantage happened outside the legislature but because the offence is independent of the “vote or speech” protected by Articles 105(2) and 194(2). The remit of parliamentary privilege is intricately linked to the nexus of the act to the ‘vote’ or ‘speech’ and the transaction of parliamentary business.

124Copy pinpoint124. The majority judgment in PV Narasimha Rao (supra) did not delve into when the offence of bribery is complete or the constituent elements of the offence. However, on the facts of the case, the majority held that those MPs who voted as agreed were covered by the immunity, while those who did not vote at all (Ajit Singh) were not covered by the immunity under Articles 105(2) and 194(2). This erroneously links the offence of bribery to the performance of the act. In fact, in the impugned judgment as well, the High Court has relied on this position to hold that the appellant is not covered by the immunity as she eventually did not vote as agreed on and voted for the candidate from her party.

125Copy pinpoint125. The understanding of the law in the judgment of the majority in PV Narasimha Rao (supra) creates an artificial distinction between those who receive the illegal gratification and perform their end of the bargain and those who receive the same illegal gratification but do not carry out the agreed task. The offence of bribery is agnostic to the performance of the agreed action and crystallizes based on the exchange of illegal gratification. The minority judgment also highlighted the prima facie absurdity in the paradox created by the majority judgment. Agarwal, J observed that: “47. […] If the construction placed by Shri Rao on the expression “in respect of” is adopted, a Member would be liable to be prosecuted on a charge of bribery if he accepts bribe for not speaking or for not giving his vote on a matter under consideration before the House but

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he would enjoy immunity from prosecution for such a charge if he accepts bribe for speaking or giving his vote in Parliament in a particular manner and he speaks or gives his vote in Parliament in that manner. It is difficult to conceive that the framers of the Constitution intended to make such a distinction in the matter of grant of immunity between a Member of Parliament who receives bribe for speaking or giving his vote in Parliament in a particular manner and speaks or gives his vote in that manner and a Member of Parliament who receives bribe for not speaking or not giving his vote on a particular matter coming up before the House and does not speak or give his vote as per the agreement so as to confer an immunity from prosecution on charge of bribery on the former but denying such immunity to the latter. Such an anomalous situation would be avoided if the words “in respect of” in Article 105(2) are construed to mean “arising out of” […]” (emphasis supplied)

126Copy pinpoint126. Indeed, to read Articles 105(2) and 194(2) in the manner proposed in the majority judgment results in a paradoxical outcome. 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. On the other hand, a legislator who agrees to accept a bribe, but may eventually decide to vote independently will be prosecuted. Such an interpretation belies not only the text of Articles 105 and 194 but also the purpose of conferring parliamentary privilege on members of the legislature. H. International position on bribery vis-à-vis privileges

127Copy pinpoint127. The above exposition has sought to elucidate the law governing the subject of parliamentary privileges in India and its implications on a member of the legislature engaging in bribery. It has been the leitmotif of most judgments on the subject in India to delve into the law in other jurisdictions before outlining the position of parliamentary privileges in India. The jurisprudence on parliamentary privileges in India has since grown in its own right and we have referred to the rich jurisprudence of this Court and the history of parliamentary

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privileges in India. However, since both the majority and the minority judgments in PV Narasimha Rao (supra) have relied heavily on jurisprudence in foreign jurisdictions, it is appropriate to lay out, in brief, the evolution and position of the law on privileges as it relates to the issue of a bribe received by a member of Parliament in other jurisdictions. We shall first direct our attention to the position of law in the United Kingdom followed by the United States of America, Canada, and Australia. I. United Kingdom

128Copy pinpoint128. As we have explored above, the law on parliamentary privileges in UK was developed after a struggle by the House of Commons with the Tudor and Stuart Kings. In The King v. Sir John Elliot,61 at the peak of the confrontation between the Commons and the King in 1629, the King’s Bench prosecuted three members of the House of Commons, Sir John Elliot, Denzel Hollis and Benjamin Valentine, for making seditious speech, disturbing public tranquillity, and violently holding the Speaker in his position to stop the House from being adjourned. The members of Parliament were found guilty, fined and imprisoned. Sir John Elliot was sent to be imprisoned in a tower where his health declined and he ultimately passed away. The report of the trial came to be published in 1667 and was noticed by the House of Commons. The House resolved that the judgment was illegal and against the privileges of Parliament. On a writ of error presented by Denzel Hollis, the House of Lords reversed the judgment of the King’s Bench.

129Copy pinpoint129. With the glorious revolution of 1688, the last of the Stuart Kings, James, was expelled and a new dynasty was instated. The bitter struggle led to a firmly established constitutional monarchy with the House of Commons ultimately claiming both sovereignty and certain privileges which became ancient and undoubted as a result of the persistence of the House and its gradual recognition. Erskine May notes that: “at the commencement of every Parliament it has been the custom for the Speaker, in the name, and on behalf of, the Commons, to lay claim by humble petition to their

61 (1629) 3 St. Tr. 294

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ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings.”62

130Copy pinpoint130. The clause stipulating freedom of speech in Parliament and immunity from prosecution flows from the Bill of Rights 1689. The Act was a crucial constitutional initiative by Parliament in England to lay claim to its status by grounding it in statute. The statute was to secure Parliament from royal interference in or through the courts. Article IX of the Bill of Rights stipulates: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” The clause guarantees freedom of speech in Parliament and protects it from being “impeached or questioned” in any court or place out of Parliament.

131Copy pinpoint131. Two aspects of Article IX of the Bill of Rights may be outlined at the outset. First, the privilege under Article IX in UK is not attached to individual members only. It immunizes the freedom of speech and debates or proceedings in Parliament and stipulates that it shall not be ‘impeached or questioned.’ Secondly, Article IX stipulates that the proceedings in Parliament may only be ‘impeached or questioned’ in Parliament. This has led to debate as to whether any material from Parliamentary proceedings can be placed before the Courts and whether the jurisdiction of Parliament ousts the jurisdiction of the Courts. As we shall elucidate below, the position as it stands allows for material from Parliamentary proceedings in the UK to be placed before the Court provided that it is not used to imply or argue mala fides behind the action. The courts in the UK have also interpreted a narrow scope for the nexus required for non-legislative activities to be immune. This has led to the holding that the jurisdiction of Parliament to discipline a member for taking bribe would not automatically oust the jurisdiction of the courts.

62 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th ed. (2019) 242.

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132Copy pinpoint132. The parliamentary immunity attracted to speech made in Parliament came to be applied in the case of Ex Parte Wason,63 where a member of Parliament was accused of conspiring to make a statement which they knew to be false. A person had furnished a petition to Earl Russel to present before the House of Lords which charged the Lord Chief Baron of deliberately telling a falsehood before a Parliamentary committee. This would have led to the removal of the Lord Chief Baron upon an address by both Houses of Parliament for such a removal. Earl Russel, Lord Chelmsford, and Lord Chief Baron conspired to make speeches in the House of Lords to the effect that the allegations of falsehood were unfounded despite knowing that the allegations were true. The magistrate refused to take the applicant’s recognizance on the grounds that a speech made in Parliament could not disclose any indictable offence. The Queen’s Bench affirmed the order.

133Copy pinpoint133. Cockburn, CJ opined that speeches made in either House could not give rise to civil or criminal proceedings regardless of the injury caused to the interests of a third person. Concurring with the opinion Lush, J held that: “[…] I am clearly of opinion that we ought not to allow it to be doubted for a moment that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House.” The Queen’s Bench therefore held that a speech made inside the House cannot be questioned in any proceeding before a court in a civil or criminal action and neither can the motives behind the performance of such acts be questioned.

134Copy pinpoint134. The issue of bribery was only governed by common law till 1889. Different common law offences were attracted based on corruption by different offices and their functions. The Public Bodies Corrupt Practices Act 1889, which applied only to local government bodies, created the first statutory offence of corruption. Subsequently, the Prevention of Corruption Act 1906 extended the offence of corruption to the private sector. Neither of these statutes covered the acceptance

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of bribe by a member of Parliament. In the absence of a statute, the question of taking bribe by a member of Parliament had remained a question of breach of privilege and only the House was empowered to take action against such corruption.

135Copy pinpoint135. The Royal Commission on Standards of Conduct in Public Life, chaired by Lord Salmon, submitted its report in 1976 which inter alia recommended bringing “corruption, bribery and attempted bribery of a Member of Parliament acting in his Parliamentary capacity within the ambit of the criminal law.” While presenting his report to the House of Lords, Lord Salmon said: “To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake. The passage in the Bill of Rights is: “That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.” Now this is a charter for freedom of speech in the House. It is not a charter for corruption. To my mind, the Bill of Rights, for which no one has more respect than I have, has no more to do with the topic which we are discussing than the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited and taken. We have recommended that the Statutes relating to corruption should all be replaced by one comprehensive Statute which will sweep away the present anomalies. If you are not an agent—and Members of Parliament neither of this House nor of the other place are agents—if you are not the member of a public body (and we are not members of public bodies) the Statutes do not touch you. At Common Law you cannot be convicted of bribery and corruption unless you are the holder of an office, and most of us are not the holders of an office.” (emphasis supplied)

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136Copy pinpoint136. No action was taken by Parliament on this recommendation of the Salmon Report. However, in R v. Greenway,64 a member of Parliament was accused of accepting a bribe for helping the interests of a company. A case to quash the prosecution was filed. The member of Parliament asserted that his actions were protected by parliamentary privileges. Rejecting this assertion, Buckley, J held that: “That a member of Parliament against whom there is a prime facie case of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present time. I do not believe it to be the law.”

137Copy pinpoint137. Another commission was constituted after allegations of sleaze by many members of Parliament. The Standing Committee on Standards in Public Life under the Chairmanship of Lord Nolan submitted its report in 1994. The report expressed doubt as to who would have jurisdiction over a bribe taking member of Parliament. To resolve the jurisdictional question between the House and the court the report recommended for clarity from Parliament in the form of a statute. The report recommended that: “The Salmon Commission in 1976 recommended that such doubt should be resolved by legislation, but this has not been acted upon. We believe that it would be unsatisfactory to leave this issue outstanding when other aspects of the law of Parliament relating to conduct are being clarified. We recommend that the Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament. This could usefully be combined with the consolidation of the statute law on bribery which Salmon also recommended, which the government accepted, but which has not been done. This might be a task which the Law Commission could take forward.” (emphasis supplied) This recommendation was referred by the government to the Law Commission. The Law Commission submitted its report in 1998

64 [1998] PL 357, referred to as R v Currie in PV Narasimha Rao (supra)

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