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Constitution of India – Arts. 105 and 196 – Powers, privileges and immunities of the Houses of Parliament or Legislature, as the case may be, and of members and committees – Member of Parliament or the Legislative Assembly, if can claim immunity from prosecution on a charge of bribery in a criminal court – Reconsideration of the correctness of the majority view in*PV Narasimha Rao’s case which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking: Held: Judgment of the majority in *PV Narasimha Rao’s case 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 decision not reconsidered – Thus, said case not concurred with and overruled. [Para 188] Constitution of India – Arts. 105 and 196 – Powers, privileges and immunities of the Houses of Parliament or Legislature, and of members and committees – Allegation against the member of Legislative Assembly that she accepted bribe from an independent candidate for casting her vote in his favour in the Rajya Sabha elections, however, in an open ballot, she did not cast her vote in favour of the alleged bribe giver but her own party candidate – Chargesheet against the member – Petition for quashing of criminal charges, claiming protection of Art.194(2), relying on *PV Narasimha Rao’s case that member would enjoy immunity from prosecution for accepting bribe for speaking or giving their vote in Parliament – Rejected by the High Court – Matter before the Supreme Court where the two-judge bench referred the matter to three-judge bench, who further referred to five-judges bench – Bench of five-judges doubted the correctness of *PV Narasimha Rao wherein the majority judgment held that the legislator is conferred with immunity when they accept bribe for speaking or giving their vote in Parliament, whereas minority held that giving bribe to influence legislator to vote or speak in Parliament, not protected by Arts. 105(2) and 194(2), and referred the matter to bench of seven judges: Held: Interpretation placed on the issue in question in the judgment of the majority in *PV Narasimha Rao’s case results in a paradoxical outcome – Such an interpretation is contrary to the text and purpose of Arts. 105 and 194 – Reconsidering *PV Narasimha Rao’s case does not violate the principle of stare decisis – Members of the House or indeed the House itself cannot claim privileges which are not essentially related to their functioning – Constitution envisions probity in public life – Corruption and bribery of members of the legislature erode the foundation of the Parliamentary democracy – Bribery is not protected by parliamentary privilege – Delivery of result irrelevant to the offence of bribery – Voting for elections to the Rajya Sabha falls within the ambit of Art. 194(2) – Thus, said case not concurred with and overruled. [Paras D, G, I, 188] Judicial Precedent – Overruling of the long-settled law in *PV Narasimha Rao’s case, if warranted: Held : Period of time over which the case has held the field is not of primary consequence – It is not appropriate for this Court to confine itself to a rigid understanding of the doctrine of stare decisis – Ability of this Court to reconsider its decisions is necessary for the organic development of law and the advancement of justice – If this Court is denuded of its power to reconsider its decisions, the development of constitutional jurisprudence would virtually come to a standstill – Thus, reconsidering *PV Narasimha Rao’s case does not violate the principle of stare decisis – *PV Narasimha Rao’s case has wide ramifications on public interest, probity in public life and the functioning of parliamentary democracy – It contains several apparent errors, its interpretation of the text of Art. 105; its conceptualization of the scope and purpose of parliamentary privilege and its approach to international jurisprudence all of which resulted in a paradoxical outcome – There is an imminent threat of allowing an error to be perpetuated if the decision in *PV Narasimha Rao’s case is not reconsidered – Mistaken interpretation of the Constitution, must not be perpetuted merely because of rigid allegiance to a previous opinion of five judges of this Court. [Paras 31, 33, 40, 44, 188.1] Constitution of India – Arts. 105 and 194 – Parliamentary privileges, if collective right of the house – Two constituent elements of privileges: Held: First is the sum of rights enjoyed by the House of Parliament collectively 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, 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 – Second element of rights exercised individually by members of the House includes freedom of speech and freedom from arrest, among others – 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” – 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 – Privileges enjoyed by members of the House which exceed those possessed by other bodies or individuals, are not absolute or unqualified – Thus, the privileges and immunities enshrined in Arts. 105 and 194 belong to the House collectively – 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. [Paras 76, 77, 84] Constitution of India – Arts. 105 and 194 – Parliamentary privileges – Necessity test to claim and exercise a privilege: Held: Members of the House or indeed the House itself cannot claim privileges which are not essentially related to their functioning – 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 – 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 – Houses of Parliament or Legislatures, and the committees are not islands which act as enclaves shielding those inside from the application of ordinary laws – Lawmakers are subject to the same law that the law-making body enacts for the people it governs and claims to represent. [Paras 87, 90, 91] Constitution of India – Arts. 105 and 194 – Parliamentary privilege – Privileges, if attract immunity to a member of Parliament or of the Legislatures who engages in bribery in connection with their speech or vote: Held: Bribery is not protected by parliamentary privilege – Bribery is not in respect of anything said or any vote given – Bribery is not immune under clause (2) of Art.105 and Art.194 because a member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote – Same principle applies to bribery in connection with a speech in the House or a Committee – Individual member of the legislature cannot assert a claim of privilege to seek immunity u/Arts 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. [Para G, 188.4, 188.7] Constitution of India – Arts. 105 and 194 – Parliamentary privilege – Expression ‘in respect of’ and ‘anything’ in Clause (2) of Art. 105 – Interpretation: Held: Clause (2) of Art. 105 grants immunity “in respect of anything” said or any vote given – Extent of this immunity must be tested on the anvil of the test of intrinsic relation to the functioning of the House and the necessity test – Phrase “in respect of” is significant to delineate the ambit of the immunity granted under Clause (2) of Art. 105 – Words “in respect of” in Clause (2) 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 – Expressions “anything” and “any” must be read in the context of the accompanying expressions in Arts 105(2) and 194(2) – Words “anything” or “any” may not be interpreted without reading the operative word on which it applies i.e. “said” and “vote given” respectively – 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 – 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. [Paras 99, 102-103, 188.6] Constitution of India – Arts. 105 and 194 – Power, privileges and immunity in Parliament – Purpose and object: Held: Constitution envisions probity in public life – 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” in Art. 105 must have a meaning consistent with the purpose of privileges and immunities – Arts. 105 and 194 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 – Purpose is destroyed when a member is induced to vote or speak in a certain manner not because of their belief/ position on an issue but because of an act of bribery – 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. [Paras 104, 188.5, 188.8] Constitution of India – Arts. 105 and 194 – Parliamentary privileges – Courts and the House, if exercise parallel jurisdiction over allegations of bribery: Held: Issue of bribery is not one of exclusivity of jurisdiction by the House over its bribe-taking members – Purpose of a House acting against a contempt by a member for receiving a bribe serves a purpose distinct from a criminal prosecution – Jurisdiction which is exercised by a competent court to prosecute a criminal offence and the authority of the House 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 – 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 – 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. [Paras 188.9, 188.10] Constitution of India – Arts. 105 and 194 – Parliamentary privileges – Offence of bribery, stage at which it crystallizes: Held: 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 – Delivery of results is irrelevant to the offence of bribery – To read Arts. 105(2) and 194(2) in the manner proposed in the majority judgment in PV Narasimha Rao’s case 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 Arts. 105 and 194 but also the purpose of conferring parliamentary privilege on members of the legislature – 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 – Offence of bribery is complete at the point in time when the legislator accepts the bribe – Prevention of Corruption Act, 1988 – s. 7. [Paras 117, 126, 188.11] Constitution of India – Arts. 105 and 194 – Parliamentary privileges – Votes casted by elected members of the state legislative assembly in an election to the Rajya Sabha, if protected by Art. 194(2): Held: Voting for elections to the Rajya Sabha falls within the ambit of Art.194(2) – Text of Art. 194 consciously uses the term ‘Legislature’ instead of ‘House’ to include parliamentary processes which do not necessarily take place on the floor of the House or involve ‘lawmaking’ in its pedantic sense – Rajya Sabha or the Council of States performs an integral function in the working of the democracy and the role played by Rajya Sabha constitutes a part of the basic structure of the Constitution – Role played by elected members of the state legislative assemblies in electing members of Rajya Sabha is significant and requires utmost protection to ensure that vote is exercised freely and without fear of legal persecution – Any other interpretation belies the text of Art.194(2) and the purpose of parliamentary privilege – Protection Arts. 105 and 194 colloquially called “parliamentary privilege” and not “legislative privilege” – It cannot be restricted to only law-making on the floor of the House but extends to other powers and responsibilities of elected members, taking place in the Legislature or Parliament, even when the House is not sitting. [Paras 180, 187] Constitution of India – Art. 194 – Use of the term “Legislature” instead of the “House of Legislature” at appropriate places – Effect: Held: It is evident from the drafting of the provision that the two terms have not been used interchangeably – First limb of Art. 194(2) pertains to “anything said or any vote given by him in the Legislature or any committee thereof” – However, 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’ used in the first limb, to use the term “House of such a Legislature” in the second limb of the provision – Provision creates a distinction between the two – 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 Art. 174 – Term “Legislature”, on the other hand, refers to the wider concept under Art. 168, comprising the Governor and the Houses of the Legislature – Use of the phrase “in the Legislature” instead of “House of Legislature” is significant. [Paras 174, 175.] Constitution of India – Arts. 105, 194 – Parliamentary privilege under: Held: Is integral to deliberative democracy in facilitating the functioning of a parliamentary form of governance – It ensures that legislators in whom citizens repose their faith can express their views and opinions on the floor of the House without ‘fear or favour’ – Legislator belonging to a political party with a minuscule vote share can fearlessly vote on any motion; a legislator from a remote region of the country can raise issues that impact her constituency without the fear of being harassed by legal prosecution; and a legislator can demand accountability without the apprehension of being accused of defamation. [Para 1] Constitution of India – Art. 105, clause (1), (2), (3), (4) – Powers, privileges, etc. of the Houses of Parliament and of the members and committees thereof – Explanation: Held: Clause (1) declares that there shall be freedom of speech in Parliament, subject to the Constitution and to the rules and standing orders regulating the procedure in Parliament – First limb of Clause (2) 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 and 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 – 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 – Clause (3) states that in respect of privileges not falling under Clauses (1) and (2) of Art. 105, the powers, privileges and immunities, shall be such as may from time to time be defined by Parliament by law – Clause (3) allows Parliament to enact a law on its privileges from time to time – Clause (4) extends the freedoms in the above clauses to all persons who by virtue of the Constitution have a right to speak in Parliament – Thus, four clauses in Arts. 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, and of members and committees. [Paras 63-66, 73] Parliamentary privileges – History of privileges of legislatures in India: Held: History can be traced to the history of parliamentary privileges in the House of Commons in the UK as well as the struggle of the Indian Legislatures to claim these privileges under colonial rule – Unlike the House of Commons in the UK, India does not have ‘ancient and undoubted’ privileges which were vested after a struggle between Parliament and the King – Statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution. [Paras 49, 188.2] Parliamentary privileges – Bribery vis-à-vis privileges – Jurisprudence in foreign jurisdictions – Evolution and position of the law on privileges vis-a-vis bribe received by a member of Parliament in other jurisdictions-United Kingdom, United States of America, Canada, and Australia – Explained and discussed. [Paras 128-167] Prevention of Corruption Act, 1988 – s. 7 – Offence relating to public servant being bribed – Offence of bribery, when complete – Constituent elements of the offence: Held: Under s. 7, 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 – First explanation to the provision 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 – Thus, 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. [Para 117] Judicial review – Amenability – Claim to parliamentary privilege : Held: Claim to parliamentary privilege conforms to the parameters of the Constitution, as such amenable to judicial review. [Para 188.3] Judicial discipline – Procedure of: Held: Decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength – A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength – However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench – In such situations, the case is placed before a bench of larger strength – In consonance with judicial discipline, the correctness of the decision in PV Narasimha Rao’s case was only doubted by the co-equal bench of five judges of this Court in a detailed order and accordingly, the matter was placed before this bench of seven judges – Thus, no infirmity in the reference to seven judges bench to reconsider the decision in *PV Narasimha Rao’s case. [Paras 24, 25, 30]Doctrines/Principles – Doctrine of stare decisis – Meaning: Held: Doctrine of stare decisis provides that the Court should not lightly dissent from precedent – However, the doctrine is not an inflexible rule of law, and it cannot result in perpetuating an error to the detriment of the general welfare of the public – Larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests formulated in the precedents of this Court – This Court may review its earlier decisions if it believes that there is an error, or the effect of the decision would harm the interests of the public or if it is inconsistent with the legal philosophy of the Constitution – In cases involving the interpretation of the Constitution, this Court would do so more readily than in other branches of law because not rectifying a manifest error would be harmful to public interest and the polity. [Paras 33, 188.1] Interpretation of Constitution – Interpretation of a provision of the Constitution: Held: Court must interpret the text in a manner that does not do violence to the fabric of the Constitution. [Para 92] Interpretation of Constitution – Marginal note to the Article – Importance of: Held: 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 language of the Article is plain and ambiguous, undue importance cannot be placed on the marginal note appended to it – Furthermore, marginal note to a Section in a statute does not control the meaning of the body of the Section if the language employed is clear. [Para 173] Interpretation of statutes – Principles of statutory interpretation – Illustrations appended to s. 7 of the Prevention of Corruption Act – Relevance: Held: 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 – Illustration to the first explanation of s. 7 of the PC Act aids 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 – 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 the bribe is accepted, the offence of bribery is complete – Prevention of Corruption Act, 1988. [Para 118] |
