Sita Soren v. Union of India

Sita Soren v. Union of India

recommending a new law which makes the offence of corruption applicable to all. This led to a sequence of events which ultimately culminated in the enactment of the Bribery Act 2010. The Act covers instances where members of Parliament engage in corruption.

138Copy pinpoint138. While efforts were being made by lawmakers, the courts in UK continued answering questions on the scope of Article IX of the Bill of Rights on members of Parliament who engage in bribery. The allegations which had led to the constitution of the Nolan committee came before the courts in R v. Parliamentary Commissioner for Standards Ex Parte Fayed,65 and in Hamilton v. Al Fayed.66 In the first case, a person had accused a member of Parliament of taking corruption money from him while the member was serving as a minister in the government. The Parliamentary Commissioner of Standards had cleared a member of Parliament of charges pertaining to taking of bribes. The complainant filed for leave to apply for judicial review. The Court of Appeal allowed the application and held that: “It is important on this application to identify the specific function of the Parliamentary Commissioner for Standards which is the subject of complaint on this application. It is that a Member of Parliament received a corrupt payment. Mr. Pannick rightly says that parliamentary privilege would not prevent the courts investigating issues such as whether or not a Member of Parliament has committed a criminal offence, or whether a Member of Parliament has made a statement outside the House of Parliament which it is alleged is defamatory. He submits that, consistent with this, the sort of complaint which the applicant makes in this case is not in relation to an activity in respect of which the Member of Parliament would necessarily have any form of parliamentary immunity.” (emphasis supplied)

139Copy pinpoint139. In Hamilton v. Al Fayed (supra), another case emanating from the same facts against another member of Parliament, a question arose as to whether parliamentary privileges may be waived. The Court

65 [1998] 1 WLR 669 66 [2001] 1 A.C. 395

p. 550 Copy page pinpoint

Digital Supreme Court Reports

while returning specific findings on facts, also held that “courts are precluded from entertaining in any proceedings (whatever the issue which may be at stake in those proceedings) evidence, questioning or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament.” In arriving at such a conclusion the court relied on the judgment in Prebble v. Television New Zealand.67

140Copy pinpoint140. In the above case, the respondent had transmitted a programme making allegations against the government that a minister had conspired with a businessman and public officials to promote and implement state asset sales with the object of allowing the businessman to obtain assets at unduly favourable terms. The minister sued the channel for defamation. The channel sought to make a defence of truth and place reliance on things said and acts done in Parliament. It argued that the protection under Article IX of the Bill of Rights would only protect a member from being held liable for his speech in either House. However, they could be placed on record as a defence if it is not being used to inflict liability upon a speech made in either House. The Privy Council held that parties to a litigation cannot bring into question anything said or done in the House or impute any motive to those actions. The Court allowed reliance on the official publication of the House proceedings to the extent that they are not used to suggest that the words were improperly spoken, or any statute was passed for improper use.

141Copy pinpoint141. The question of reliance on legislative material was further weighed in favour of the legislature in 2009. In Office of Government Commerce v. Information Commissioner (Attorney General intervening),68 the Queen’s Bench Division held that opinions of parliamentary committees would be irrelevant before a court given the nature of their work. This holding was influenced by the words and associated history of Article IX of the Bill of Rights, which is worded more broadly than Clause (2) of Articles 105 and 194 of the Constitution of India. The minority opinion in PV Narasimha Rao (supra) throws light on the issue as follows:

67 (1994) 3 ALL ER 407 68 [2009] 3 WLR 627

p. 551 Copy page pinpoint

“41. […] The protection given under clause (2) of Article 105 is narrower than that conferred under Article 9 of the Bill of Rights in the sense that the immunity conferred by that clause is personal in nature and is available to the Member in respect of anything said or in any vote given by him in the House or any committee thereof. The said clause does not confer an immunity for challenge in the court on the speech or vote given by a Member of Parliament. The protection given under clause (2) of Article 105 is thus similar to protection envisaged under the construction placed by Hunt, J. in R. v. Murphy [(1986) 5 NSWLR 18] on Article 9 of the Bill of Rights which has not been accepted by the Privy Council in Prebble v. Television New Zealand Ltd. [(1994) 3 All ER 407, PC] The decision in Ex p Wason [(1869) 4 QB 573 : 38 LJQB 302] which was given in the context of Article 9 of the Bill of Rights, can, therefore, have no application in the matter of construction of clause (2) of Article 105. […]” The issue of whether courts can rely on observations contained in Parliamentary committee reports now stands settled by a Constitution Bench of this Court in Kalpana Mehta (supra).

142Copy pinpoint142. The majority judgment in PV Narasimha Rao (supra) relied on the earlier cases from the UK which generally interpret Article IX to protect speech and debate. Relying on these judgments, the majority extrapolated a general principle of not allowing the production of anything before the courts which may be casually or incidentally related to the acts of a legislator. The Court then grounded this principle by interpreting Article 105(2) in an overbroad manner to attach immunity for bribes received in furtherance of legislative functions. The Court brushed aside the opinion of Buckley, J in R v. Greenway on the ground that it remains to be tested in appeal. The majority therefore failed to contextually apply the different clauses governing the freedom of speech in UK and India. The cases referred to by the majority, while helpful to understand the law generally, do not aid in immunizing bribes received for influencing of votes. As we have noted above, one of the reasons behind the claim of exclusive jurisdiction over bribery by the Parliament was that members of Parliament were not covered by the anti-corruption statute. However, a constitutional interpretation has to answer whether, in the absence

p. 552 Copy page pinpoint

Digital Supreme Court Reports

of a statute, a member of Parliament can claim immunity for taking corruption money and thereby influence his vote.

143Copy pinpoint143. Since the judgment of this Court in PV Narasimha Rao (supra) the courts in UK have narrowly interpreted the immunity under Article IX. In R v. Chaytor,69 members of Parliament were prosecuted for false accounting for having submitted fake claims and making financial gains. The UK Supreme Court held that the purpose of Article IX of the Bill of Rights is to protect the freedom of speech in the House. The Court opined that the provision must be given a narrower view and held that the prosecution would not violate the privilege of Parliament. The Court relied on the holding in Greenway (supra) that the nexus between a bribe and a speech made in Parliament does not oust the jurisdiction of the courts. The Court therefore opined that submitting a claim for expenses and taking part in such proceedings has an even more tenuous link to parliamentary privileges and cannot be immune from prosecution. The Court applied the test of whether the action of the member of Parliament which was being questioned bore on the core or essential function of the Parliament. Lord Phillip opined that: “47. The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.” (emphasis supplied)

144Copy pinpoint144. Lord Rodger in the course of his concurring opinion further shed light on the issue being amenable to the contempt jurisdiction of the House

69 [2010] 3 WLR 1707

p. 553 Copy page pinpoint

of Parliament. Lord Rodger held that this would be an overlapping jurisdiction and would not amount to an ouster of the court’s jurisdiction. In Makudi v. Baron Triesman of Trottenham,70 the Court of Appeal held that a statement made by a witness in public which repeated his testimony before a parliamentary committee would not attract immunity as it was an extra-parliamentary speech which was too remote to the utterance before the parliamentary committee. The Court also opined when the immunity may be attracted. The Court held that: “25. I accept, however, that there may be instances where the protection of Article 9 indeed extends to extra- Parliamentary speech. No doubt they will vary on the facts, but generally I think such cases will possess these two characteristics: (1) a public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve, and (2) so close a nexus between the occasions of his speaking, in and then out of Parliament, that the prospect of his obligation to speak on the second occasion (or the expectation or promise that he would do so) is reasonably foreseeable at the time of the first and his purpose in speaking on both occasions is the same or very closely related. […]”

145Copy pinpoint145. The courts in the UK have, overtime, advanced a narrower view than the earlier cases governing the field of privileges. They have 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 courts is not ousted by the immunity of members or the ability of the House to take contempt action against bribery. II. United States of America

146Copy pinpoint146. Parliamentary privileges in the United States of America emanate from Section 6 of Article 1 in the Constitution. The relevant part of the provision, referred to as the Speech and Debate Clause, is influenced by Article IX of the English Bill of Rights 1689. The clause reads as follows: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by

p. 554 Copy page pinpoint

Digital Supreme Court Reports

Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” (emphasis supplied) Courts in the US have given a broad interpretation to the Speech and Debate clause so far as legislative acts of the members of Congress are concerned. Beyond that the Courts have held that a member of Congress may be liable under a criminal statute of general application. All that is prohibited is reliance on the official acts of the member to prove the prosecution case.

147Copy pinpoint147. In United States v. Thomas F Johnson,71 a member of Congress was accused of conflict of interest and conspiring to defraud the United States. The allegation against Johnson was that he entered into a conspiracy to exert influence and obtain dismissal of pending indictments against a saving and loan company and its officers on mail fraud charge. As part of the conspiracy, Johnson made speeches favourable to independent savings and loan associations in the House. The accused was found guilty by the trial court. His conviction was set aside by the Court of Appeals for the Fourth Circuit on the ground that the allegations were barred under the Speech and Debate Clause from being raised in the Court. The US Supreme Court in interpreting the Speech and Debate Clause held that the Government may not use the speech made by a member of Congress or question its motivation in a court of law. However, the prosecution may make a case without relying on the speech given by the Congressman. The Court opined that its decision does not apply to a prosecution for violating a general criminal law which ‘does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.’

148Copy pinpoint148. The US Supreme Court has relied on Johnson (supra) in subsequent cases involving bribery by members of Congress to hold that they

p. 555 Copy page pinpoint

may be prosecuted so long as they do not rely on a speech or vote given by the legislator. In United States v. Brewster,72 a Senator was accused of accepting a bribe in return for being influenced in his performance of official acts with respect to postage rate legislation. The trial court dismissed the charges on the ground that the Senator attracted parliamentary privileges. The US Supreme Court by majority held that the Speech and Debate Clause prevented prosecutors from introducing evidence that the member of Congress actually performed some legislative act, such as making a speech or introducing legislation, as part of a corrupt plan, but that other evidence might establish that the member had violated the anti- corruption laws. The Court held that: “43. The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process. […] …

60. It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts. So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members. […] …

62. The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order

p. 556 Copy page pinpoint

Digital Supreme Court Reports

to make out a violation of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.” (emphasis supplied) The US Supreme Court therefore opined that the privileges exercised by members of Congress individually was to preserve the independence of the legislature. The independence was exactly what would be compromised if the Speech and Debate Clause were to be understood as providing immunity to acts of bribery by members of Congress. Therefore, immunity under the Constitution is only attracted to actions which are clearly a part of the legislative process.

149Copy pinpoint149. The Court in Brewster (supra) was conscious of the potential misuse of investigating powers by the Executive but held that a House acting by a majority would be more detrimental to the rights of the accused if it were left to be the final arbiter. The Court noted that a member of Congress would be deprived of the procedural safeguards that Court affords to accused persons. The Court further held that: “58. We would be closing our eyes to the realities of the American political system if we failed to acknowledge that many non-legislative activities are an established and accepted part of the role of a Member, and are indeed ‘related’ to the legislative process. But if the Executive may prosecute a Member’s attempt, as in Johnson, to influence another branch of the Government in return for a bribe, its power to harass is not greatly enhanced if it can prosecute for a promise relating to a legislative act in return for a bribe. We therefore see no substantial increase in the power of the Executive and Judicial Branches over the Legislative Branch resulting from our holding today. […]

59. […] As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the

p. 557 Copy page pinpoint

legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence. […] …

64. Nor does it matter if the Member defaults on his illegal bargain. To make a prima facie case under this indictment, the Government need not show any act of appellee subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act. If, for example, there were undisputed evidence that a Member took a bribe in exchange for an agreement to vote for a given bill and if there were also undisputed evidence that he, in fact, voted against the bill, can it be thought that this

p. 558 Copy page pinpoint

Digital Supreme Court Reports

alters the nature of the bribery or removes it from the area of wrongdoing the Congress sought to make a crime? …

67. Mr. Justice BRENNAN suggests that inquiry into the alleged bribe is inquiry into the motivation for a legislative act, and it is urged that this very inquiry was condemned as impermissible in Johnson. That argument misconstrues the concept of motivation for legislative acts. The Speech or Debate Clause does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions. In Johnson, the Court held that, on remand, Johnson could be retried on the conspiracy-to-defraud count, so long as evidence concerning his speech on the House floor was not admitted. […].” (emphasis supplied) The Court therefore rejected the idea that anything having a nexus to legislative functions would automatically attract immunity under the Speech and Debate Clause of the US Constitution.

150Copy pinpoint150. In Gavel v. United States,73 certain secret documents were made part of the record of a sub-committee hearing in the US Senate by Senator Gavel. He then published the entire document in a private publication. An aide to the Senator was subpoenaed by the grand jury which was investigating the matter. The question which arose for consideration of the US Supreme Court was whether the aide of the Senator enjoyed any immunity under the Speech and Debate Clause and to what extent could he be questioned. The US Supreme Court held that given the expansive nature of legislative work, an aide to a member of Congress would be protected under the Speech and Debate Clause but only to the extent that it pertained to aiding the legislator in discharge of his legislative functions. The Court further held that private publication of the document was not a necessary part of the functions of the Senator and no immunity would extend in that regard. The Court held that:

p. 559 Copy page pinpoint

“26. Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but ‘only when necessary to prevent indirect impairment of such deliberations.’ United States v. Doe, 455 F.2d, at 760. …

27. Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication. [ The sole constitutional claim asserted here is based on the Speech or Debate Clause. We need not address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials. Of course, Art. I, § 5, cl. 3, requires that each House ‹keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . ..› This Clause has not been the subject of extensive judicial examination. See Field v. Clark, 143 U.S. 649, 670–671, 12 S.Ct. 495, 496–497, 36 L.Ed. 294 (1892); United States v. Ballin, 144 U.S. 1, 4, 12 S.Ct. 507, 508, 36 L.Ed. 321 (1892).] We cannot but conclude that the Senator’s arrangements with

p. 560 Copy page pinpoint

Digital Supreme Court Reports

Beacon Press were not part and parcel of the legislative process.” (emphasis supplied)

151Copy pinpoint151. The Court in Gavel (supra) applied the same standard it did in Brewster (supra) to hold that only acts which are essential to the deliberations of the House or in discharge of the functions vested under the Constitution are immune from prosecution before a court of law. Other acts which may in some way be related to the speech or vote of a legislator will not be protected under the Speech and Debate Clause unless they were essential to the legislator’s function. The Court therefore held a consistent position that members of Congress would only have immunity under the Constitution for their ‘sphere of legitimate legislative activity.’

152Copy pinpoint152. In United States v. Helstoski, 74 a member of the House of Representatives was accused of accepting money in return for introducing certain private bills to suspend the application of immigration laws. Relying on its previous rulings in Johnson (supra), Brewster (supra) and Gavel (supra) the US Supreme Court held that the purpose of the Speech and Debate Clause was to free the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. The Court reaffirmed the position of American law that material from the legislative acts of the accused Congressman may not be relied on or placed before the grand jury but proof of bribe and promise to commit a future legislative act may be investigated as they do not constitute an essential function of the legislator in discharge of his duties.

153Copy pinpoint153. We may helpfully refer to another decision before concluding the analysis of the position of law in the United States. In Hutchinson v. Proxmire,75 a Senator would release a publication highlighting what he perceived to be “wasteful government spending”. The Senator made a speech on the floor of the Senate and had it published in the press. The complainant, who was funded by public institutes for his research, was named by the Senator. The press release was circulated to over one hundred thousand people including agencies

74 442 US 477 (1979) 75 439 US 1066 (1979)

p. 561 Copy page pinpoint

which funded the research of the complainant. The complainant filed a suit claiming loss of respect in his profession, loss of income and the ability to earn income in the future. The District Court granted summary judgment in favour of the Senator, holding that the publication fell under the ‘information function’ of Congress and would be immune under the Speech and Debate Clause.

154Copy pinpoint154. The US Supreme Court held that the intention of the Speech and Debate Clause was not to create an absolute privilege in favour of members of Congress. The clause, the Court held, is only attracted to “legislative activities” and would not protect republishing of defamatory statements. The Court held that: “Whatever imprecision there may be in the term “legislative activities,” it is clear that nothing in history or in the explicit language of the clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. … Claims under the clause going beyond what is needed to protect legislative independence are to be closely scrutinized. … Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory statements originally made in either House. We perceive no reason from that long-established rule.” (emphasis supplied)

155Copy pinpoint155. The principle which emerges from the approach taken with regard to privileges in the United States is that a member of Congress is not immune for engaging in bribery to perform legislative acts in terms of speech or vote. The Speech and Debate Clause does not give any absolute immunity to a legislator with respect to all things bearing a nexus with legislative activity. The immunity is attracted only to those functions which are essential and within the legitimate sphere of legislative business. The only privilege a Congressperson may attract in a prosecution is that the content of the speech, vote or legislative acts may not be produced as evidence by the prosecution.

p. 562 Copy page pinpoint

Digital Supreme Court Reports

156Copy pinpoint156. The majority judgment in PV Narasimha Rao (supra) has interpreted Johnson (supra) and the dissenting opinion in Brewster (supra) to arrive at the same conclusion which it did upon a reflection of the law in the UK. Here too, the majority judgment fails on two accounts. Firstly, it fails to account for the fact that the Speech and Debate Clause which is substantially borrowed from Article IX of the English Bill of Rights confers immunity to the speech and vote made in parliament. The understanding arrived at in the majority judgment was not informed by the evolution of law in a line of cases in the United States. On the contrary, the majority judgment relied solely on the dissenting opinion in Brewster (supra) without adequate substantiation for such reliance. Secondly, the majority judgment has extended its interpretation of the Speech and Debate Clause and pigeon-holed the interpretation of Article 105(2) to satisfy this understanding. III. Canada

157Copy pinpoint157. The precise question of whether bribing legislators to vote in a certain direction falls within the ambit of parliamentary privilege was adjudicated upon by the Queen’s Bench in R v. Bunting et al.76 In that case, the defendants had sought the quashing of an indictment for conspiracy to change the Government of the Province of Ontario by bribing members of the legislature to vote against the government. The Court conclusively held that the offence of bribery and conspiracy to bribe members of the legislature fell within the jurisdiction of the court and such an inquiry would not encroach on parliamentary privilege. Further, it was held that if the defendants were proceeded against by the court, they may also be parallelly inquired against by the legislature for violation of rights and privileges. The proceedings are for different offences, may be conducted in their own right and such situations do not constitute a case of double punishment or double jeopardy. The Court (speaking through Wilson, CJ) held: “It is to my mind a proposition very clear that this Court has jurisdiction over the offence of bribery as at the common law in a case of this kind, where a member of the Legislative Assembly is concerned either in the giving or in the offering to give a bribe, or in the

p. 563 Copy page pinpoint

taking of it for or in respect of any of his duties as a member of that Assembly; and it is equally clear that the Legislative Assembly has not the jurisdiction which this Court has in a case of the kind; and it is also quite clear that the ancient definition of bribery is not the proper or legal definition of that offence. … There is nothing more definitely settled than that the House of Commons in England, and the different colonial Legislatures, have not, and never have had, criminal jurisdiction. … But if these three persons had agreed that the two members of the House of Lords should make these false statements, or vote in any particular manner, in consideration of a bribe paid or to be paid to them, that would have been a conspiracy to do an act, not necessarily illegal perhaps, but to do the act by illegal means, bribery being an offence against the law; and the offence of conspiracy would have been complete by reason of the illegal means by which the act was to be effected. That offence could have been inquired into by the Court, because the inquiry into all that was done would have been of matters outside of the House of Lords, and there could therefore be no violation of, or encroachment in any respect upon, the lex parliament”. (emphasis supplied)

158Copy pinpoint158. The decision in Bunting (supra) was before the Court in PV Narasimha Rao (supra). The Minority expressly relied on the decision, recognizing that bribing a legislator was treated as a common law offence under the criminal law in Canada and Australia and a legislator can be prosecuted in a criminal court for the offence. Agarwal, J noted: “54. […] In Australia and Canada where bribery of a legislator was treated as an offence at common law the courts in White [13 SCR (NSW) 332], Boston [(1923) 33 CLR 386] and Bunting [(1884-85) 7 Ontario Reports 524] had held that the legislator could be prosecuted in the

p. 564 Copy page pinpoint

Digital Supreme Court Reports

criminal court for the said offence. It cannot, therefore, be said that since acceptance of bribe by a Member of the House of Commons was treated as a breach of privilege by the House of Commons and action could be taken by the House for contempt against the Member, the Members of the House of Commons, on 26-1-1950, were enjoying a privilege that in respect of conduct involving acceptance of bribe in connection with the business of Parliament, they could only be punished for breach of privilege of the House and they could not be prosecuted in a court of law. Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the appellants to claim immunity from prosecution in respect of the charge levelled against them.

55. […] In the earlier part of the judgment we have found that for the past more than 100 years legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative activities and, with the exception of the United Kingdom, most of the Commonwealth countries treat corruption and bribery by Members of the legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all other public functionaries are subject to such laws. We are, therefore, unable to uphold the above contention of Shri Thakur.” (emphasis supplied) The majority judgment, on the other hand, makes a reference to Bunting (supra) but chooses to not rely on the judgment or any other judgment by Canadian courts placed on record in the case.

159Copy pinpoint159. Another interesting line of jurisprudence, expanded by the Supreme Court of Canada after the decision in PV Narasimha Rao (supra), is relevant to answer the question before this Court. While dealing with the remit of parliamentary privilege, the Supreme Court of Canada has adopted the test of ‘necessity’ in a formulation similar to the test

p. 565 Copy page pinpoint

formulated in Part F of this judgment. In this regard, the landmark decision of the Supreme Court of Canada in Canada (House of Commons) v. Vaid,77 may be noted in some detail.

160Copy pinpoint160. In the above case, the former Speaker of the House of Commons was accused of dismissing his chauffeur for reasons that allegedly constituted workplace discrimination under the Canadian Human Rights Act, 1985. This was resisted by the House of Commons which contended that such an inquiry constituted an encroachment on parliamentary privilege and the hiring and firing of House employees are “internal affairs” which may not be questioned or reviewed by any tribunal or court apart from the House itself. The court did not accept this contention.

161Copy pinpoint161. The Supreme Court of Canada held that legislative bodies do not constitute enclaves shielded from the ordinary law of the land. The party that seeks to rely on immunity under the broader umbrella of parliamentary privilege has the onus of establishing its existence. In Canada, the House of Commons in the UK is used as the benchmark to determine the existence of parliamentary privilege. Therefore, to determine whether a privilege does in fact exist, the first step is to scrutinize if it is authoritatively established in relation to the Canadian Parliament or the House of Commons. If the existence is not established, the doctrine of necessity is to be applied to determine if the act is protected by parliamentary privilege. In essence, the legislature or the member seeking immunity must prove that the activity for which privilege is claimed is closely and directly connected with the fulfilment by the legislature of its functions and that external interference would impact the autonomy required for the assembly to carry out its functions with “dignity and efficiency”.

162Copy pinpoint162. The Supreme Court of Canada held as follows: “While much latitude is left to each House of Parliament, such a purposive approach to the definition of privilege implies important limits. There is general recognition, for example, that privilege attaches to “proceedings in Parliament”. Nevertheless, as stated in Erskine May (19th ed. 1976), at p. 89, not “everything that is said or done within

77 [2005] 1 SCR 667

p. 566 Copy page pinpoint

Digital Supreme Court Reports

the Chamber during the transaction of business forms part of proceedings in Parliament. Particular words or acts may be entirely unrelated to any business which is in course of transaction or is in a more general sense before the House as having been ordered to come before it in due course.” (This passage was referred to with approval in Re Clark.) Thus in R. v. Bunting (1885), 7 O.R. 524, for example, the Queen’s Bench Division held that a conspiracy to bring about a change in the government by bribing members of the provincial legislature was not in any way connected with a proceeding in Parliament and, therefore, the court had jurisdiction to try the offence. Erskine May (23rd ed.) refers to an opinion of “the Privileges Committee in 1815 that the re-arrest of Lord Cochrane (a Member of the Commons) in the Chamber (the House not sitting) was not a breach of privilege. Particular words or acts may be entirely unrelated to any business being transacted or ordered to come before the House in due course. … All of these sources point in the direction of a similar conclusion. In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.” (emphasis supplied)

163Copy pinpoint163. Similarly, the decision of the Supreme Court of Canada in Chagnon v. Syndicat de la fonction publique et parapublique du Québe,78 relies on Vaid (supra) and adopts the test of ‘necessity’ in similar

78 [2018] 2 SCR 687

p. 567 Copy page pinpoint

terms. In that case, security guards who were employed by the National Assembly of Québec were dismissed from service by the President of the assembly. The dismissal was assailed before the labour arbitrator. This was objected to on the ground that the decision to dismiss the guards is not subject to review and is protected by parliamentary privilege. The Supreme Court of Canada, in its majority opinion, held that the dismissal of the security guards was not protected by parliamentary privilege. The Court opined that the inherent nature of parliamentary privilege indicates that its scope must be anchored to its rationale, i.e. to protect legislatures in the discharge of their legislative and deliberative functions. A court recognizing a parliamentary privilege entails that the court cannot review its exercise. Therefore, a purposive approach must be adopted to ensure that it is only as broad as necessary to perform the assembly’s constitutional role. In the factual context, the Court held that the necessity of a parliamentary privilege over the management of the security guards could not be established. The management of guards could be dealt with under ordinary law without impeding the security of the assembly or its ability to deliberate on issues. IV. Australia

164Copy pinpoint164. The position of law in Australia has been consistent since 1875. The courts have held that an attempt to bribe a member of the legislature to influence their votes constitutes a criminal offence under common law. The decision of the Supreme Court of New South Wales in R v. Edward White79 was a landmark in this regard. Sir James Martin (CJ) observed: “The point now for the consideration of the Court, whether or not the objection so taken is a valid one, or in other words, whether an attempt to bribe a member of the Legislative assembly is a criminal offence. I am clearly of the opinion that such an attempt is a misdemeanor at common law. Although no case can be found on an information or indictment against a person for attempting to bribe a member of the Legislature, there are several cases which show that such an attempt is an offence.

79 13 SCR (NSW) 332

p. 568 Copy page pinpoint

Digital Supreme Court Reports

… The injury to the public is more direct and is certainly greater in tampering with the person actually elected than with the persons who elect him. A person sent into the Legislature by means of votes corruptly obtained may be an able and conscientious member; but a legislator who suffers his vote to be influenced by a bribe does that which is calculated to sap the utility of representative institutions at their foundation. It would be a reproach to the common law if the offer to, or the acceptance of, a bribe by such a person were not an offence.” (emphasis supplied) Similarly, Justice Hargrave also observed as follows: “These numerous modern authorities clearly establish that the old common law prohibition against bribery has been long since extended beyond mere judicial officers acting under oaths of office, to all persons whatever holding offices of public trust and confidence; and it seems impossible to understand why members of our Legislative Assembly and Legislative council, who are entrusted with the public duty of enacting our laws, should not be at least equally protected from bribery and corruption as any Judge or constable who has to carry out the law.” (emphasis supplied)

165Copy pinpoint165. Subsequently, the decision in White (supra) was also followed by the High Court of Australia in R v. Boston.80 This was a case where certain private parties entered into an agreement to bribe members of the legislative assembly such that they would use their official position to secure the acquisition of certain estates. The argument that was advanced before the Court was unique. The appellant did not dispute the proposition established in White (supra) that an agreement to pay money to a member of the assembly to influence their vote would amount to a criminal offence. However, it was

80 (1923) 33 CLR 386

p. 569 Copy page pinpoint

submitted that the bribe in this case was to induce the member of the assembly to use his position outside and not inside the assembly in favour of the bribe-givers. The Court rejected the artificial distinction between illegal gratification to perform acts inside the parliament and acts outside the parliament and held that in both cases, the act of bribery impairs the capacity of the member to exercise a disinterested judgment, thereby, impacting their ability to act as a representative of the people. Knox, CJ held: “[…] In my opinion, the payment of money to, and the receipt of money by, a member of Parliament to induce him to use his official position, whether inside or outside Parliament, for the purpose of influencing or putting pressure on a Minister or other officer of the Crown to enter into or carry out a transaction involving payment of money out of the public funds, are acts tending to the public mischief, and an agreement or combination to do such acts amounts to a criminal offence. From the point of view of tendency to public mischief I can see no substantial difference between paying money to a member to induce him to use his vote in Parliament in a particular direction and paying him money to induce him to use his position as a member outside Parliament for the purpose of influencing or putting pressure on Ministers. … Payment of money to a member of Parliament to induce him to persuade or influence or put pressure on a Minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside Parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in Parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest and makes him a servant of the person who pays him, instead of a representative of the people.” (emphasis supplied)

p. 570 Copy page pinpoint

Digital Supreme Court Reports

166Copy pinpoint166. Courts in Australia have also followed the position of law laid down by the Supreme Court of the UK in Chaytor (supra) that the House of Commons does not have exclusive jurisdiction to deal with criminal conduct by members of the House. The only exception to such cases is when the existence of parliamentary privilege makes it virtually impossible to determine the issues or if the proceedings interfere with the ability of the House to conduct its legislative and deliberative business. For instance, in Obeid v. Queen81, the appellant was charged with the offence of misconduct in office by using his position to gain a pecuniary advantage for himself. One of the grounds argued before the Court of Criminal Appeal for New South Wales was that since Parliament had the power to deal with such contraventions by members of the assembly, the court should have refrained from exercising jurisdiction. The Court followed Chaytor (supra) to hold that the Court and Parliament may have concurrent jurisdiction in respect of criminal matters and there was no law which prohibited the court from determining matters that do not constitute “proceedings in parliament”.

167Copy pinpoint167. The decisions in White (supra) and Boston (supra) were placed before the Court in PV Narasimha Rao (supra). The minority judgment discussed both judgments in detail and relied on them to conclude that giving a bribe to influence a legislator to vote or speak in Parliament constitutes a criminal offence, which is not protected by Articles 105(2) and 194(2). The majority judgment, however, does not refer to the Australian precedents. I. Elections to the Rajya Sabha are within the remit of Article 194(2)

168Copy pinpoint168. We may lastly direct our attention to an argument raised by Mr Venkataramani, the learned Attorney General. The Attorney General submitted that the decision PV Narasimha Rao (supra) is inapplicable to the facts of the present case. The factual situation in PV Narasimha Rao (supra) pertained to a no-confidence motion, while in the present case, the appellant voted to fill vacant seats in the Council of States or the Rajya Sabha. In the counter affidavit filed by the Respondent, it was submitted that since polling for the Rajya Sabha Election was held outside the house in the lobby, it cannot be considered as a proceeding of the House like a no-confidence motion. However,

81 [2017] NSWCCA 221

p. 571 Copy page pinpoint

during oral arguments and in his written submissions, the Attorney General premised the argument that polling to the Rajya Sabha is not protected by Article 194(2) on the ground that such an election does not form part of the legislative proceedings of the House regardless of the geographical location of the election. To buttress this argument, the Attorney General relied on three judgments of this Court in Pashupati Nath Sukul v. Nem Chandra Jain and Ors.,82 Madhukar Jetly v. Union of India,83 and Kuldip Nayar v. Union of India.84

169Copy pinpoint169. Such an argument, although attractive at first blush, appears to be misconceived. In essence, the question is whether votes cast by elected members of the state legislative assembly in an election to the Rajya Sabha are protected by Article 194(2) of the Constitution. Before addressing the judgments relied on by the learned Attorney General, we will analyze the provisions of the Constitution that govern this interesting question of constitutional interpretation.

170Copy pinpoint170. Article 80 governs the election of members to the Council of States or the Rajya Sabha. The provision reads as follows: “80. Composition of the Council of States. — (1) The Council of States shall consist of— (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories. (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. …

82 [1984] 1 SCR 939 : (1984) 2 SCC 404 83 (1997) 11 SCC 111 84 [2006] Suppl. 5 SCR 1 : (2006) 7 SCC 1

p. 572 Copy page pinpoint

Digital Supreme Court Reports

(4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. …” (emphasis supplied)

171Copy pinpoint171. Pursuant to Article 80, the Rajya Sabha consists of twelve members who are nominated by the President and not more than two hundred and thirty-eight representatives of the States and Union Territories. Significantly, under Article 80(4), the representatives of the Rajya Sabha shall be elected by the elected members of the Legislative Assembly of the states. Therefore, the power to ‘vote’ for the elected members of the Rajya Sabha is solely entrusted to the elected members of the Legislative Assemblies of the states. It constitutes an integral part of their powers and responsibilities as members of the legislative assemblies of each of the states.

172Copy pinpoint172. The next question that arises, therefore, is whether the text of Article 194(2) places any restriction on such a vote being protected by parliamentary privilege. As stated above, Article 194(2) of the Constitution reads as follows: “194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof. — … (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings. …”

173Copy pinpoint173. The marginal note to Article 194 uses the phrase “powers, privileges, etc. of the Houses of Legislatures and of the members and committees thereof.” It is a settled position of law that the marginal

p. 573 Copy page pinpoint

note to a section in a statute does not control the meaning of the body of the section if the language employed is clear. With reference to Articles of the Constitution, a marginal note may be used as a tool to provide “some clue as to the meaning and purpose of the Article”. However, the real meaning of the Article is to be derived from the bare text of the Article. When the language of the Article is plain and ambiguous, undue importance cannot be placed on the marginal note appended to it.85 In Kesavananda Bharati v. State of Kerala,86 Hegde, J (speaking for himself and A K Mukherjea, J) observed as follows: “620. […] To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal note which says “Procedure for amendment of the Constitution”. Marginal note plays a very little part in the construction of a statutory provision. It should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negative the existence of the power implied in the Article.” (emphasis supplied)

174Copy pinpoint174. Distinct from the marginal note, in the text of the provision, there is a conscious use of the term “Legislature” instead of the “House of Legislature” at appropriate places. It is evident from the drafting of the provision that the two terms have not been used interchangeably. The first limb of Article 194(2) pertains to “anything said or any vote given by him in the Legislature or any committee thereof”. However,

85 Justice GP Singh, Principles of Statutory Interpretation, 15th Ed. (2021), 188-189; Bengal Immunity Com- pany Limited v. State of Bihar, [1955] 2 SCR 603 86 [1973] Suppl. 1 SCR 1 : (1973) 4 SCC 225

p. 574 Copy page pinpoint

Digital Supreme Court Reports

in the second limb, the phrase used is “in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings.” There is a clear departure from the term ‘Legislature’ which is used in the first limb, to use the term “House of such a Legislature” in the second limb of the provision. It is clear, therefore, that the provision creates a distinction between the “Legislature” as a whole (in the first limb) and the “House” of the same legislature (in the second limb).

175Copy pinpoint175. As correctly submitted by Mr Raju Ramachandran, senior counsel for the appellant, the terms “House of Legislature” and “Legislature” have different connotations. “House of Legislature” refers to the juridical body, which is summoned by the Governor pursuant to Article 174.87 The term “Legislature”, on the other hand, refers to the wider concept under Article 168,88 comprising the Governor and the Houses of the Legislature. It functions indefinitely and continues to exist even when the Governor has not summoned the House.

176Copy pinpoint176. The use of the phrase “in the Legislature” instead of “House of Legislature” is significant. There are several parliamentary processes which do not take place on the floor of the House, i.e. when it is in session, having been summoned by the Governor. For instance, there are ad hoc committees and standing committees which examine various issues, including matters of policy or government administration. Many of these committees do not deliberate on laws or bills tabled in the House or cease to function when the ‘House’ is not sitting. There appears to be no reason why the deliberations that take place in such committees (“anything said”) would not be protected by parliamentary privilege.

87 174. Sessions of the State Legislature, prorogation and dissolution.— (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) The Governor may from time to time— (a) prorogue the House or either House; (b) dissolve the Legislative Assembly.] 88 168. Constitution of Legislatures in States.—(1) For every State there shall be a Legislature which shall consist of the Governor, and— (a) in the States of Andhra Pradesh], Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, Telangana, and Uttar Pradesh, two Houses; (b) in other States, one House. (2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.

p. 575 Copy page pinpoint

177Copy pinpoint177. The elections to the Rajya Sabha conducted under Article 80 as referred to above, may also take place when the House is not in session as seats may fall vacant when the legislative assembly of the state is not in session. However, the elections remain a part of the functioning of the Legislature and take place within the precincts of the Legislative Assembly. Similarly, the elections for the President of India under Article 5489 and for the Vice President under Article 6690 may also take place when Parliament or the state legislative assemblies are not in session. However, they are an integral part of the powers and responsibilities of elected members of the Parliament and state legislative assemblies. The vote for such elections is given in the Legislature or Parliament, which is sufficient to invoke the protection of the first limb of Articles 105(2) and 194(2). Such processes are significant to the functioning of the legislature and in the broader structure of parliamentary democracy. There appears to be no restriction either in the text of Article 105(2) and Article 194(2), which pushes such elections outside of the protection provided by the provisions. Further, the purpose of parliamentary privilege to provide legislators with the platform to “speak” and “vote” without fear is equally applicable to elections to the Rajya Sabha and elections for the President and Vice President as well.

178Copy pinpoint178. We will now address the cases relied on by the Attorney General to advance his argument. In Pashupati Nath Sukul (supra), a bench of three judges of this Court held that a member of the legislative assembly may propose a candidature for a seat in and vote at an election to the Rajya Sabha even before taking the constitutional oath required under Article 188 of the Constitution. The Court observed that an election to fill seats in the Rajya Sabha does not form a part of the legislative proceedings of the House nor do they constitute a vote given in the House on any issue arising before it. Therefore, it is not hit by Article 193 of the Constitution which states that a member of the Legislative Assembly cannot sit and vote in the House before subscribing to the oath. Interestingly, the Court also noted that in the intervening period between the name of the elected member appearing in the notification and the member taking the constitutional oath, she is entitled to all the privileges, salaries, and allowances

p. 576 Copy page pinpoint

Digital Supreme Court Reports

of a member of the Legislative Assembly. It is clear that the Court recognized that members of the legislative assembly are entitled to privileges even when they cannot participate or are not participating in ‘law-making’. One of these privileges is the parliamentary privilege bestowed on members of the legislative assembly under Article 194. The Court held as follows: “18. […] The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words “sitting and voting” in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of Section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. As mentioned earlier, under Section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven o’clock in the forenoon and three o’clock

p. 577 Copy page pinpoint

in the afternoon before the last day notified for making nominations under Section 30 of the Act. Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling. Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by Assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the Returning Officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send the acknowledgment by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.” (emphasis supplied)

179Copy pinpoint179. In Madhukar Jetley (supra), the Court relied on Pashupati Nath Sukul (supra) and reiterated that an election to the Rajya Sabha does not form part of the legislative proceedings of the House and the vote cast at such an election does not constitute a vote given at a sitting of the House. Pertinently, both Pashupati Nath Sukul (supra) and Madhukar Jetley (supra) did not relate to any question bearing on the interpretation and scope of Article 194(2) or any claim for parliamentary privilege.

180Copy pinpoint180. As stated above, there is no dispute with the proposition that elections to the Rajya Sabha are not part of the law-making functions and do not take place during a sitting of the House. However, the text of Article 194 consciously uses the term ‘Legislature’ instead of ‘House’ to include parliamentary processes which do not necessarily

p. 578 Copy page pinpoint

Digital Supreme Court Reports

take place on the floor of the House or involve ‘law-making’ in its pedantic sense.

181Copy pinpoint181. Finally, the learned Attorney General placed reliance on Kuldip Nayar (supra). In this case, a Constitution bench of this Court was adjudicating the validity of an amendment to the Representation of the People Act, 1951 by which (a) the requirement that a candidate for elections to the Rajya Sabha be an elector from a constituency in the state was removed; and (b) an open ballot was introduced in the elections to the Rajya Sabha.

182Copy pinpoint182. One of the submissions before the Court to assail the use of open ballots in elections to the Rajya Sabha was that the votes are protected by Article 194(2). It was contended that the right to freedom of speech guaranteed to MLAs under Articles 194(1) and (2) is different from the right to free speech and expression under Article 19(1)(a), which is subject to reasonable restrictions. It was urged that the absolute freedom to vote under Article 194(2) of the Constitution was being diluted through a statutory amendment to the Representation of the People Act, 1951 permitting open ballots. While addressing this argument, the Court held that elections to fill seats in the Rajya Sabha are not proceedings of the legislature but a mere exercise of franchise, which falls outside the net of Article

194. The Court (speaking through YK Sabharwal, CJ) held as follows: “Arguments based on Legislative Privileges and the Tenth Schedule …

372. It is the contention of the learned counsel that the same should be the interpretation as to the scope and tenor of the provision contained in Article 194(2) concerning the privileges of the Members of the Legislative Assemblies of the States who constitute State-wise electoral colleges for electing representatives of each State in the Council of States under the provisions of Article 80(4). The counsel argue that the freedom of expression without fear of legal consequences as flowing from Article 194(2) should inure to the Members of the Legislative Assemblies while discharging their function as electoral college under Article 80(4).

p. 579 Copy page pinpoint

373. This argument, though attractive, does not deserve any credence in the context at hand. The proceedings concerning election under Article 80 are not proceedings of the “House of the Legislature of the State” within the meaning of Article 194. It is the elected Members of the Legislative Assembly who constitute, under Article 80 the electoral college for electing the representative of the State to fill the seat allocated to that State in the Council of States. It is noteworthy that it is not the entire Legislative Assembly that becomes the electoral college, but only the specified category of members thereof. When such members assemble at a place, they do so not to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature.” (emphasis supplied)

183Copy pinpoint183. The protection under Article 105 and Article 194 guarantees that the vote of an elected member of Parliament or the state legislature, as the case may be, cannot be the subject of proceedings in court. It does not guarantee a “secret ballot”. In fact, even when elected members of Parliament or of the state legislature vote on Bills during a sitting of the House, which undisputedly falls within the ambit of Articles 105 and 194, they are not assured of a secret ballot. While voting is ordinarily carried out by a voice vote, members of the legislature can seek what is referred to as a “division vote.” In such a case the division of votes, i.e. which member voted in favour or against the motion is visible to the entire House and the general public. It cannot be gainsaid that the purpose of parliamentary privilege under Article 194(2) is not to provide the legislature with anonymity in their votes or speeches in Parliament but to protect them from legal proceedings pertaining to votes which they cast or speeches which they make. That the content of the votes and speeches of their elected representatives be accessible to citizens is an essential part of parliamentary democracy.

p. 580 Copy page pinpoint

Digital Supreme Court Reports

184Copy pinpoint184. Mr Raju Ramachandran, senior counsel on behalf of the appellant has argued that the observations in Kuldip Nayar (supra) do not constitute the ratio decidendi of the judgment and are obiter. It is trite law that this Court is only bound by the ratio of the previous decision. There may be some merit to this contention. However, in any event, this being a combination of seven judges of this Court, it is clarified that voting for elections to the Rajya Sabha falls within the ambit of Article 194(2). On all other counts, the decision of the Constitution bench in Kuldip Nayar (supra) remains good law.

185Copy pinpoint185. Interestingly, Kuldip Nayar (supra) is yet another case where the Court relied on the minority judgment in PV Narasimha Rao (supra) to strengthen the proposition that while interpreting the Constitution, the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Applying this proposition of law to the question of whether voting to the Rajya Sabha is covered within the ambit of Article 194(2) also brings us to a similar conclusion.

186Copy pinpoint186. One of us (DY Chandrachud, J) in K.S. Puttaswamy (Aadhaar- 5J.) v. Union of India,91 had occasion to reflect on the significance of the Rajya Sabha and bicameralism on the “foundations of our democracy”. It was observed that: “1106. The institutional structure of the Rajya Sabha has been developed to reflect the pluralism of the nation and its diversity of language, culture, perception and interest. The Rajya Sabha was envisaged by the Makers of the Constitution to ensure a wider scrutiny of legislative proposals. As a second chamber of Parliament, it acts as a check on hasty and ill-conceived legislation, providing an opportunity for scrutiny of legislative business. The role of the Rajya Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power. The Upper Chamber complements the working of the Lower Chamber in many ways. The Rajya Sabha acts as an institution of balance in relation to the Lok Sabha and represents the federal structure of India. Both the existence and the role

91 [2018] 8 SCR 1 : 2018 SCC OnLine SC 1642

p. 581 Copy page pinpoint

of the Rajya Sabha constitute a part of the basic structure of the Constitution. The architecture of our Constitution envisions the Rajya Sabha as an institution of federal bicameralism and not just as a part of a simple bicameral legislature. Its nomenclature as the “Council of States” rather than the “Senate” appropriately justifies its federal importance. …

1108. […] As a revising chamber, the Constitution-Makers envisioned that it will protect the values of the Constitution, even if it is against the popular will. The Rajya Sabha is a symbol against majoritarianism. …

1110. Participatory governance is the essence of democracy. It ensures responsiveness and transparency. An analysis of the Bills revised by the Rajya Sabha reveals that in a number of cases, the changes recommended by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually carried out. The Dowry Prohibition Bill is an example of a legislation in which the Rajya Sabha’s insistence on amendments led to the convening of a joint sitting of the two Houses and in that sitting, one of the amendments suggested by the Rajya Sabha was adopted without a division. The Rajya Sabha has a vital responsibility in nation building, as the dialogue between the two Houses of Parliament helps to address disputes from divergent perspectives. The bicameral nature of Indian Parliament is integral to the working of the federal Constitution. It lays down the foundations of our democracy. That it forms a part of the basic structure of the Constitution, is hence based on constitutional principle. The decision of the Speaker on whether a Bill is a Money Bill is not a matter of procedure. It directly impacts on the role of the Rajya Sabha and, therefore, on the working of the federal polity.” (emphasis supplied)

187Copy pinpoint187. The Rajya Sabha or the Council of States performs an integral function in the working of our democracy and the role played by the Rajya

p. 582 Copy page pinpoint

Digital Supreme Court Reports

Sabha constitutes a part of the basic structure of the Constitution. Therefore, the role played by elected members of the state legislative assemblies in electing members of the Rajya Sabha under Article 80 is significant and requires utmost protection to ensure that the vote is exercised freely and without fear of legal persecution. The free and fearless exercise of franchise by elected members of the legislative assembly while electing members of the Rajya Sabha is undoubtedly necessary for the dignity and efficient functioning of the state legislative assembly. Any other interpretation belies the text of Article 194(2) and the purpose of parliamentary privilege. Indeed, the protection under Articles 105 and 194 has been colloquially called a “parliamentary privilege” and not “legislative privilege” for a reason. It cannot be restricted to only law-making on the floor of the House but extends to other powers and responsibilities of elected members, which take place in the Legislature or Parliament, even when the House is not sitting. J. Conclusion

188Copy pinpoint188. In the course of this judgment, while analysing the reasoning of the majority and minority in PV Narasimha Rao (supra) we have independently adjudicated on all the aspects of the controversy namely, whether by virtue of Articles 105 and 194 of the Constitution a Member of Parliament or the Legislative Assembly, as the case may be, can claim immunity from prosecution on a charge of bribery in a criminal court. We disagree with and overrule the judgment of the majority on this aspect. Our conclusions are thus: 188.1. The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents of this Court. The judgment of the majority in PV Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered; 188.2. Unlike the House of Commons in the UK, India does not have ‘ancient and undoubted’ privileges which were vested

p. 583 Copy page pinpoint

after a struggle between Parliament and the King. Privileges in pre-independence India were governed by statute in the face of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution; 188.3. Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review; 188.⁴. An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the twofold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator; 188.5. Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery; 188.6. The expressions “anything” and “any” must be read in the context of the accompanying expressions in Articles 105(2) and 194(2). The words “in respect of” means ‘arising out of’ or ‘bearing a clear relation to’ and cannot be interpreted to mean anything which may have even a remote connection with the speech or vote given; 188.7. Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee; 188.8. Corruption and bribery by members of the legislatures erode probity in public life; 188.9. The jurisdiction which is exercised by a competent court to prosecute a criminal offence and the authority of the House

p. 584 Copy page pinpoint

Digital Supreme Court Reports

to take action for a breach of discipline in relation to the acceptance of a bribe by a member of the legislature exist in distinct spheres. The scope, purpose and consequences of the court exercising jurisdiction in relation to a criminal offence and the authority of the House to discipline its members are different; 188.10. The potential of misuse against individual members of the legislature is neither enhanced nor diminished by recognizing the jurisdiction of the court to prosecute a member of the legislature who is alleged to have indulged in an act of bribery; 188.11. The offence of bribery is agnostic to the performance of the agreed action and crystallizes on the exchange of illegal gratification. It does not matter whether the vote is cast in the agreed direction or if the vote is cast at all. The offence of bribery is complete at the point in time when the legislator accepts the bribe; and 188.12. ⁠The interpretation which has been placed on the issue in question in the judgment of the majority in PV Narasimha Rao (supra) results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194.

189Copy pinpoint189. The reference is answered in the above terms. Having answered the question of law raised by the Impugned Judgement of the High Court in this reference, the Criminal Appeal stands disposed of in the above terms.

190Copy pinpoint190. Pending applications, if any, stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case: Reference answered and Criminal Appeal disposed of.