9911796707
TMI Blog2024 (6) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... dered. 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. 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 - Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review. Corruption - Prosecution for bribery - HELD THAT:- 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 - 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of a parliamentary form of governance. It ensures that legislators in whom citizens repose their faith can express their views and opinions on the floor of the House without fear or favour . With the protection of parliamentary privilege, a legislator belonging to a political party with a minuscule vote share can fearlessly vote on any motion; a legislator from a remote region of the country can raise issues that impact her constituency without the fear of being harassed by legal prosecution; and a legislator can demand accountability without the apprehension of being accused of defamation. 2. Would a legislator who receives a bribe to cast a vote in a certain direction or speak about certain issues be protected by parliamentary privilege? It is this question of constitutional interpretation that this Court is called upon to decide. A. Reference 3. The Criminal Appeal arises from a judgment dated 17 February 2014 of the High Court of Jharkhand. Writ Petition (Criminal) No 128 of 2013. An election was held on 30 March 2012 to elect two members of the Rajya Sabha representing the State of Jharkhand. The appellant, belonging to the Jharkhand Mukti Morcha, JMM was a member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in PV Narasimha Rao (supra) and referred the matter to a larger bench of seven judges. The operative part of the order reported as Sita Soren v. Union of India, 4 2023 SCC OnLine SC 1217. is extracted below: 24 . We are inclined to agree that the view which has been expressed in the decision of the majority in PV Narasimha Rao requires to be reconsidered by a larger Bench. Our reasons prima facie for doing so are formulated below: Firstly, the interpretation of Article 105(2) and the corresponding provisions of Article 194(2) of the Constitution must be guided by the text, context and the object and purpose underlying the provision. The fundamental purpose and object underlying Article 105(2) of the Constitution is that Members of Parliament, or as the case may be of the State Legislatures must be free to express their views on the floor of the House or to cast their votes either in the House or as members of the Committees of the House without fear of consequences. While Article 19(1)(a) of the Constitution recognises the individual right to the freedom of speech and expression, Article 105(2) institutionalises that right by recognising the importance of the Members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mha Rao should be reconsidered by a larger Bench of seven judges. 7. The scope of the present judgment is limited to the reference made by the order of this Court dated 20 September 2023 doubting the correctness of PV Narasimha Rao (supra). The merits of the appellant s case and whether she committed the alleged offence are not being adjudicated by this Court at this stage. Nothing contained in this judgment may be construed as having a bearing on the merits of the trial or any other proceedings arising from it. B. Overview of the judgment in PV Narasimha Rao 8. The general elections for the Tenth Lok Sabha were held in 1991. Congress (I) emerged as the single largest party and formed a minority government with Mr PV Narasimha Rao as the Prime Minister. A motion of no-confidence was moved in the Lok Sabha against the government. The support of fourteen members was needed to defeat the no-confidence motion. The motion was defeated with two hundred and fifty-one members voting in support and two hundred and sixty-five members voting against the motion. A group of Members of Parliament MP owing allegiance to the JMM and the Janata Dal (Ajit Singh) Group JD (AS) voted against the no-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the freedom of speech and its exceptions contained in Article 19. MPs must be free of all constraints about what they say in Parliament. A vote is treated as an extension of speech and is given the protection of the spoken word; 12.2. The expression in respect of in Article 105(2) must receive a broad meaning and entails that an MP is protected from any proceedings in a court of law that relate to, concern or have a connection or nexus with anything said or a vote given by him in Parliament; 12.3. The alleged bribe-takers are entitled to immunity under Article 105(2) as the alleged conspiracy and acceptance of the bribe was in respect of the vote against the no-confidence motion. The stated object of the alleged conspiracy and agreement was to defeat the no-confidence motion and the alleged bribe- takers received the bribe as a motive or reward for defeating it. The nexus between the alleged conspiracy, the bribe and the no-confidence motion was explicit; 12.4. The object of the protection under Article 105(2) is to enable MPs to speak and vote freely in Parliament, without the fear of being made answerable on that account in a court of law. It is not enough that MPs should be prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be repugnant to the healthy functioning of parliamentary democracy and subversive of the rule of law; 13.2. The expression in respect of precedes the words anything said or any vote given in Article 105(2). The words anything said or any vote given can only mean speech that has been made or a vote that has already been given and does not extend to cases where the speech has not been made or the vote has not been cast. Therefore, interpreting the expression in respect of widely would result in a paradoxical situation. An MP would be liable to be prosecuted for bribery if he accepted a bribe for not speaking or not giving his vote on a matter, but he would enjoy immunity if he accepted the bribe for speaking or giving his vote in a particular way and actually speaks or gives his vote in that manner. It is unlikely that the framers of the Constitution intended to make such a distinction; 13.3. The phrase in respect of must be interpreted to mean arising out of . Immunity under Article 105(2) is available only to give protection against liability for an act that follows or succeeds as a consequence of making the speech or giving of vote by an MP and not for an act that precedes the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isted below. 16. Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant submitted that the judgment of the majority in PV Narasimha Rao (supra) is squarely applicable to the present case. Further, he argued that the majority judgment is well-reasoned and there are no grounds to reconsider the settled position of law. In this regard, he made the following submissions: 16.1. The overruling of long-settled law in PV Narasimha Rao (supra) is unwarranted according to the tests laid down by this court on overturning judicial precedents; Keshav Mills Co. Ltd v. CIT, AIR 1965 SC 1636, para 23; Krishena Kumar v. Union of India, (1990) 4 SCC 207, para 33; Shanker Raju v. Union of India, (2011) 2 SCC 132, para 10; Shah Faesal and Ors. v. Union of India (UOI), (2020) 4 SCC 1, para 17. 16.2. The object behind conferring immunity on MPs and MLAs was to shield them from being oppressed by the power of the crown . The apprehension of parliamentarians being arrested shortly before or after the actual voting or making of a speech in the Parliament (such vote or speech directed against the Executive) was the precise reason for introducing the concept of privileges and immunities; 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parliamentary immunity conferred upon MPs/ MLAs is whittled down, it would enhance the possibility of abuse of the law by political parties in power; and 16.10. Voting in the Rajya Sabha Elections is within the scope of protection of Article 194(2) as it has all the trappings of any other law-making process in the legislature. 17. Mr Venkataramani, the learned Attorney General for India advanced a preliminary submission that the decision in PV Narasimha Rao (supra) is inapplicable to the instant case. He submitted that the exercise of franchise by an elected member of the legislative assembly in a Rajya Sabha election does not fall within the ambit of Article 194(2), and thus, PV Narasimha Rao (supra) does not have any application to the present case. He submits that the objective of Article 194(2) is to protect speech and conduct in relation to the functions of the legislature. Therefore, any conduct which is not related to legislative functions, such as the election of members to the Rajya Sabha, will fall outside the ambit of Article 194(2). According to the learned Attorney General, the election of members to the Rajya Sabha is akin to any other election process and cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bribe and does not cast his vote can be prosecuted, while a member who casts his vote is given immunity; 19.6. The position of law in the United Kingdom, as developed over the years, confirms the proposition that the claim of privilege cannot be extended to immunity from prosecution for the offence of bribery; and 19.7. The international trend (particularly in the United States, Canada and Australia) is that parliamentary privilege does not extend to the offence of bribery. This trend is correctly relied on in the minority judgment, while the majority judgment relies on decisions which have been subsequently diluted even in their original jurisdictions. 20. Mr Gopal Sankarnarayan, senior counsel appearing on behalf of the intervenor endorsed the view taken by the amicus curiae. Additionally, he made the following submissions: 20.1. While the majority judgment has been doubted on multiple occasions, the minority judgment has been extensively relied on by this Court; 20.2. The word any employed in Articles 105 and 194 of the Constitution ought to be given a narrow interpretation and should not mechanically be interpreted as everything , especially as it grants an exceptional immunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminary argument of Mr Raju Ramachandran, that overruling of the long-settled law in PV Narasimha Rao (supra) is unwarranted by the application of the tests laid down by this Court on overturning judicial precedent. The order of reference provides reasons for prima facie doubting the correctness of the decision in PV Narasimha Rao (supra) including its impact on the polity and the preservation of probity in public life. However, since the learned Senior Counsel has reiterated the preliminary objection to reconsidering the decision in PV Narasimha Rao (supra) before this bench of seven judges, the argument has been addressed below. 24. A decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength. Central Board of Dawoodi Bohra Community vs. State of Maharashtra, (2005) 2 SCC 673, para 12. 25. In the present case, the case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecuted in a criminal court of an offence involving offer or acceptance of bribe. This is the precise question that this Court adjudicated on in PV Narasimha Rao (supra) as well, in the context of Article 105(2). 29. Further, both the counsel for the appellant and the counsel for CBI relied on the reasoning in PV Narasimha Rao (supra). The High Court, in its analysis, held that since Article 194(2) is pari materia to Article 105(2), the law laid down in PV Narasimha Rao (supra) covers the field. The High Court relied on PV Narasimha Rao (supra) in holding that an MP who has not cast his vote is not covered by the immunity. Since the appellant did not vote as agreed, she was held not to be protected from immunity under Article 194(2). 30. The issue which arose before the High Court turned on the decision in PV Narasimha Rao (supra). Therefore, this proceeding provides the correct occasion to settle the law once and for all. There is no infirmity in the reference to seven judges to reconsider the decision in PV Narasimha Rao (supra). 31. Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant has argued that a position of law which has stood undisturbed since 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the general public. The test laid down by the Court was rooted in establishing the baneful effect of the previous decision on the general interests of the public . It was observed: 15. [ ] in a country governed by a Federal Constitution, such as the United States of America and the Union of India are, it is by no means easy to amend the Constitution if an erroneous interpretation is put upon it by this Court. (See Article 368 of our Constitution). An erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public well being There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. Article 141 which lays down that the law declared by this Court shall be binding on all courts within the territory of India quite obviously refers to courts other than this Court. The corresponding provision of the Government of India Act, 1935 also makes it clear that the courts contemplated are the subordinate courts. (emphasis supplied) NH Bhagwati, J a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, this case is an example of the Court giving due deference to the rule of precedent and refraining from reconsidering the decision in PV Narasimha Rao (supra) until it arose squarely for consideration. 35. The appellant has relied on judgments of this Court in Shanker Raju v. Union of India (2011) 2 SCC 132. , Shah Faesal v. Union of India (2020) 4 SCC 1. , Keshav Mills Co. Ltd. v. CIT (1965) 2 SCR 908. and Krishena Kumar v. Union of India 25 (1990) 4 SCC 207. These judgments reiterate the proposition that (i) the doctrine of stare decisis promotes certainty and consistency in law; (ii) the Court should not make references to reconsider a prior decision in a cavalier manner; and (iii) a settled position of law should not be disturbed merely because an alternative view is available. However, all these judgments recognize the power of this Court to reconsider its decisions in certain circumstances including considerations of public policy ; public good and to remedy continued injustice . In the facts which arose in those cases, this Court found that there was no compelling reason to reconsider certain judgments of this Court. 36. In Shanker Raju (supra), this Court was deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on to advance a rigid understanding of stare decisis. The bench of seven judges of this Court (speaking through Gajendragadkar, CJ) observed: 23 . [ ] In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised . When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of parliamentary privilege and its approach to international jurisprudence all of which have resulted in a paradoxical outcome. The present case is one where there is an imminent threat of this Court allowing an error to be perpetuated if the decision in PV Narasimha Rao (supra) is not reconsidered. 41. Finally, the appellant also relies on the judgment of this Court in Ajit Mohan v. Legislative Assembly, National Capital Territory of Delhi , (2022) 3 SCC 529. where this Court observed that there are divergent views amongst constitutional experts on whether full play must be given to the powers, privileges, and immunities of legislative bodies, as originally defined in the Constitution, or (whether it) is to be restricted. However, it has been urged, that this Court refused to express its views on the matter on the ground that such an opinion must be left to the Parliament. The appellant submits that similarly, in this case, the Court must refrain from taking a conclusive view and leave the issue for the determination of Parliament. The argument is misconceived. 42. This judgment does not seek to determine or restrict the powers, privileges, and immunities of the legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stakeholders. When the space for deliberation in the legislature shrinks, people resort to conversations and democratic actions outside the legislature. This privilege of the citizens to scrutinise the proceedings in Parliament is a concomitant right of a deliberative democracy which is a basic feature of the Constitution. Our Constitution intended to create institutions where deliberations, views and counterviews could be expressed freely to facilitate a democratic and peaceful social transformation. 47. Parliament is a quintessential public institution which deliberates on the actualisation of the aspirations of all Indians. The fulcrum of parliamentary privileges under a constitutional and democratic set up is to facilitate the legislators to freely opine on the business before the House. Freedom of speech in the legislature is hence a privilege essential to every legislative body. 48. A deliberative democracy imagines deliberation as an ethic of good governance and is not restricted to the parliamentary sphere alone. The opinion of Sanjeev Khanna, J. in Rajeev Suri v DDA , (2022) 11 SCC 1. elucidates the contours of deliberative democracy as follows: 653 . Deliberative democra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st competent and honest decision-makers require information regarding the needs of the constituency as well as feedback on how the extant policies and decisions are operating in practice. This requires free flow of information in both directions. When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility. [ With reference to Olson's 7th implication, 7. Distributional coalitions reduce the rate of economic growth . The Rise and Decline of Nations by Mancur Olson and subsequent studies.] (emphasis supplied) The freedom of elected legislators to discuss and debate matters of the moment on the floor of the House is a key component of a deliberative democracy in a Parliamentary form of government. The ability of legislators to conduct their functions in an environment which protects their freedom to do so without being overawed by coercion or fear is constitutionally secured. As citizens, legislators have a fundamental right to the freedom of speech and expression. Going beyond that, the Constitution secures the freedom to speak and debate in the legislatures both of the Union and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvenience in enacting laws in the vast and diverse social milieu in India rather than a desire to provide representation as a means for framing better laws. However, reflecting the need for legislative privileges in carrying out the duties of the legislators, the first law member, Lord Macaulay, made efforts to secure some special facilities in the nature of powers by his draft standing orders. These special facilities included providing complete information on the subject of the legislation, the right to be present in all meetings of the Council of the Governor-General, freedom of speech, and freedom of voting. SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 317-18. 51. The privileges of attendance and voting even in non-legislative business were extended by the Charter Act 1853. It marked a further separation of the executive and legislative functions. The Legislative Council was to have additional members to help transact the legislative business and give their independent considerations to the laws under scrutiny. These members in the Legislative Council did not have any privileges by statute, but the absence of restrictions on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39-141, 158. 54. The Government of India Act 1919 separated the legislatures from executive control. It introduced dyarchy, by prescribing two classes of administrators the Executive councillors who were not accountable to the legislature and the ministers who would enjoy the confidence of the legislature. The Act extended more powers to the legislatures than previously enjoyed by them. However, members were restricted on the range of subjects which they could discuss, participate in and vote upon. Many privileges were not specified in the 1919 Act or rules of the procedure of the House. Nevertheless, the legislature claimed privileges as an inherent right of the legislature in the face of an unwilling executive. The reason for the hesitation of the colonial Government of India was that a government run by a foreign power was not willing to extend parliamentary privileges to Indian legislators as a recognition of their possessing sovereign powers. SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 322. The 1919 Act gave a qualified privilege of freedom of speech to the Houses of Legislature. Section 24(7) of the 1919 Act read thus: (7) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans, of dealing with the corrupt influence of votes within the legislature. We are unanimously of opinion that the influencing of votes of members by bribery, intimidation and the like should be legislated against. Here again we do not recommend that the matter should be dealt with as a breach of privilege. We advocate that these offences should be made penal under the ordinary law. 57. The government introduced a Legislative Bodies Corrupt Practices Bill which proposed to penalise (i) the offering of bribe to a member of a legislature in connection with his functions; and (ii) the receipt on demand by a member of the legislature of a bribe in connection with his functions. SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 213-214 The Bill ultimately lapsed and was not reintroduced. 58. The provisions of the 1919 Act were substantially retained in Section 28(1) of the Government of India Act 1935. Section 28(1) read thus: (1) Subject to the provisions of this Act and the rules and standing orders regulating the procedure of the Federal Legislature, there shall be freedom of speech in the Legislature, and no member of the Legislature sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the House of Commons in the UK and replace it with the Dominion Legislature in India immediately before the commencement of the Constitution. Opposing this amendment Mr Shibban Lal Saxena said, So far as I know there are no privileges which we enjoy and if he wants the complete nullification of all our privileges he is welcome to have his amendment adopted. CAD Vol VIII 19 May, 1949 Draft Article 85. The members of the Constituent Assembly were therefore keenly aware that their privileges under the colonial rule were not ancient and undoubted like the House of Commons in the UK but a statutory grant made by successive enactments and assertion by legislatures. F. Purport of parliamentary privilege in India I. Functional analysis 62. Article 105 which is located in Part V Chapter II of the Constitution stipulates the powers, privileges, and immunities of Parliament, its members and committees. An analogous provision concerning State Legislatures is in Article 194 of the Constitution. Article 105 reads as follows: . 105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof. (1) Subject to the provisions of this Constitution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odies. On the other hand, the fundamental right under Article 19(1)(a) is inalienable; c. Article 105 is limited to the premises of the legislative bodies. Article 19(1)(a) has no such geographical limitations; and d. Article 19(1)(a) is subject to reasonable restrictions which are compliant with Article 19(2). However, the right of free speech available to a legislator under Articles 105 or 194 is not subject to such limitations. That an express provision is made for freedom of speech in Parliament in clause (1) of Article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and is not restricted by the exceptions contained therein. 64. Clause (2) of Article 105 has two limbs. The first prescribes that a member of Parliament shall not be liable before any court in respect of anything said or any vote given by them in Parliament or any committee thereof. The second limb prescribes that no person shall be liable before any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, vote or proceedings. The vote given by a member of Parliament is an extension of speech. Therefore, the free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament is crucial for democratic governance. It is through the fearless expression of their views that Parliamentarians pursue their commitment to those who elect them. The power of speech exacts democratic accountability from elected governments. The free flow of dialogue ensures that in framing legislation and overseeing government policies, Parliament reflects the diverse views of the electorate which an elected institution represents . 182. The Constitution recognises free speech as a fundamental right in Article 19(1)(a). A separate articulation of that right in Article 105(1) shows how important the debates and expression of view in Parliament have been viewed by the draftspersons. Article 105(1) is not a simple reiteration or for that matter, a surplusage. It embodies the fundamental value that the free and fearless exposition of critique in Parliament is the essence of democracy . Elected Members of Parliament represent the voices of the citizens. In giving expression to the concerns of citizens, Parliamentary speech enhances democracy. [ ] (emphasis supplied) 66. Notably, unlike the House of Commons in the UK, India does not have ancient and undoubted rights which were vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R Ambedkar to the Constituent Assembly, CAD Vol VIII 19 May 1949 Draft Article 85 and Vol X 16 October 1949 Draft Article 85. 68. Clause (3) allows Parliament to enact a law on its privileges from time to time. It may be noted here that the House of Commons in the UK does not create new privileges. It was agreed in 1704 that no House of Parliament shall have power, by any vote or declaration, to create new privilege that is not warranted by known laws and customs of Parliament. The symbolic petition by the Speaker of the House of Commons to the crown claiming the ancient and undoubted privileges of the House of Commons are therefore not to be changed. Its privileges are those which have been practiced by the House and have become ancient and undoubted. 69. Further, unlike the House of Commons in the UK, Parliament in India cannot claim power of its own composition. The extent of privileges in India has to be within the confines of the Constitution. Within this scheme, the Courts have jurisdiction to determine whether the privilege claimed by the House of Parliament or Legislature in fact exists and whether they have been exercised correctly. In a steady line of precedent, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a conflict between the two. The Court held that the Parliament or Legislature is not the sole judge of its privileges and the courts have the power to enquire if a particular privilege claimed by the legislature in fact existed or not, by consulting the privileges of the Commons. The determination of privileges, the Court held, and whether they conform to the parameters of the Constitution is a question that must be answered by the courts. This Court opined that: 37. The next question which faces us arises from the preliminary contention raised by Mr Seervai that by his appearance before us on behalf of the House, the House should not be taken to have conceded to the Court the jurisdiction to construe Article 194(3) so as to bind it. As we have already indicated, his stand is that in the matter of privileges, the House is the sole and exclusive judge at all stages. [ ] . 42. In coming to the conclusion that the content of Article 194(3) must ultimately be determined by courts and not by the legislatures , we are not unmindful of the grandeur and majesty of the task which has been assigned to the legislatures under the Constitution. Speaking broadly, all the legislative chambers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole judge of what privileges it enjoys and secondly, Parliament or legislature may only claim privileges which are essential and necessary for the functioning of the House. We have explored the first of these limbs above. We shall now analyse the jurisprudence on the existence, extent and exercise of privileges by the House of Parliament, its members and committees. II. Parliamentary privilege as a collective right of the House 76. According to Erskine May, parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.49 The term High Court of Parliament dates back to the time when all powers of legislating and dispensing justice vested in the Monarch who in turn divested them to a body which would carry out the function of the legislature as the King sitting in the High Court of Parliament. To that extent, the term is redundant in the Indian context where the Constitution is supreme and the power of the Parliament over its domain flows from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary privilege is to safeguard the freedom, the authority and the dignity of the institution of Parliament and its members. They are granted by the Constitution to enable them to discharge their functions without any let or hindrance. Parliamentary Privileges do not exempt members from the obligations to the society which apply to other citizens. Privileges of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the applications of the laws of the land unless there are good and sufficient reasons in the interest of Parliament itself to do so. The fundamental principle is that all citizens including members of Parliament should be treated equally before the law. The privileges are available to members only when they are functioning in their capacity as members of Parliament and performing their parliamentary duties. (emphasis supplied) 79. The understanding which unequivocally emerges supports the claim that the privileges which accrue to members of the House individually are not an end in themselves. The purpose which privileges serve is that they are necessary for the House and its committees to function. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve the aims for which they have been granted. The framers of the Constitution would not have intended to grant to the legislatures those rights which may not serve any purpose for the proper functioning of the House. The privileges of the members of the House individually bear a functional relationship to the ability of the House to collectively fulfil its functioning and vindicate its authority and dignity. In other words, these freedoms are necessary to be in furtherance of fertilizing a deliberative, critical, and responsive democracy. In State of Kerala v. K Ajith , (2021) 17 SCC 318. one of us (DY Chandrachud, J) held that a member of the legislature, the opposition included, has a right to protest on the floor of the legislature. However, the said right guaranteed under Article 105(1) of the Constitution would not exclude the application of ordinary criminal law against acts not in direct exercise of the duties of the individual as a member of the House. This Court held that the Constitution recognises privileges and immunities to create an environment in which members of the House can perform their functions and discharge their duties freely. These privileges bear a funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to individual members. In State of Karnataka (supra) a seven-Judge bench of this Court speaking through MH Beg, CJ held that the powers under Article 194 (as well as Article 105) are those which depend upon and are necessary for the conduct of the business of each House. In that sense, these powers may not even apply to all the privileges which accrue to the House of Commons but may not be necessary for the functioning of the House. The learned Chief Justice stated: 57 . It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the powers meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House . They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it could not be contended that each House of a State Legislature has the same share of legislative power as the House of Commons has, as a constituent part of a completely sovereign legislature. Under our law it is the Constitution which is sovereign or supreme. The Parliament as well as each Legislature of a State in India enjoys only such legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nan, CJ after exploring a wealth of material on the subject opined that privileges serve the distinct purpose of safeguarding the integrity of the House. This Court held that privileges are not an end in themselves but must be exercised to ensure the effective exercise of legislative functions. The Chief Justice observed that: 35 . The evolution of legislative privileges can be traced back to medieval England when there was an ongoing tussle for power between the monarch and Parliament. In most cases, privileges were exercised to protect the Members of Parliament from undue pressure or influence by the monarch among others. Conversely, with the gradual strengthening of Parliament there were also some excesses in the name of legislative privileges. However, the ideas governing the relationship between the executive and the legislature have undergone a sea change since then. In modern parliamentary democracies, it is the legislature which consists of the people's representatives who are expected to monitor executive functions. This is achieved by embodying the idea of collective responsibility which entails that those who wield executive power are accountable to the legislature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst some officers of the Legislative Assembly cannot be said to interfere with the legislative functions of the Assembly. No one enjoys any privilege against criminal prosecution. 76. It is made clear that privileges are available only insofar as they are necessary in order that the House may freely perform its functions . For the application of laws, particularly, the provisions of the Lokayukt Act and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Special Police Establishment is for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation. (emphasis supplied) 90. The necessity test for ascertaining parliamentary privileges has struck deep roots in the Indian context. We do not need to explore the well-established jurisprudence on the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. 93. In State (NCT of Delhi) v Union of India , (2018) 8 SCC 501 Dipak Misra, CJ observed that the Court should interpret a constitutional provision and construe the meaning of specific words in the text in the context in which the words occur by referring to the other words of the said provision. This Court held in that case that the meaning of the word any can be varied depending on the context in which it appears and that the words any matter was not to be understood as every matter . 94. The decision in Tej Kiran Jain (supra) interpreted the word anything in Clause (1) of Article 105 to be of the widest amplitude and only subject to the words appearing after it which were in Parliament. The clause does give wide freedom of speech in Parliament. The word anything cannot be interpreted to allow interference of the court in determining if the speech had relevance to the subject it was dealing with at the time the speech was made. In Tej Kiran Jain (supra) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege, and would receive the immunity only if the action bears nexus to the effective participation of the member in the House. 97. This Court further held that privileges accruing inside the legislature are not a gateway to claim exemption from the general application of the law: 65. Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law . The entire foundation upon which the application for withdrawal under Section 321 was moved by the Public Prosecutor is based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seems to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is necessary for the functioning of the House. A vote, which is an extension of the speech, may itself neither be questioned nor proceeded against in a court of law. The phrase in respect of is significant to delineate the ambit of the immunity granted under Clause (2) of Article 105. 100. In PV Narasimha Rao (supra) the majority judgment interprets the phrase in respect of as having a broad meaning and referring to anything that bears a nexus or connection with the vote given or speech made. It therefore concluded that a bribe given to purchase the vote of a member of Parliament was immune from prosecution under Clause (2) of Article 105. By this logic, the majority judgment concluded that a bribe-accepting member who did not comply with the quid pro quo was not immune from prosecution as his actions ceased to have a nexus with his vote. As we have noted above, the interpretation of a phrase which appears in a provision cannot be interpreted in a way that does violence to the object of the provision. The majority in PV Narasimha Rao (supra) has taken the object of Article 105 to be that members of Parliament must have the widest protection under the law to be able to perform th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds in respect of means arising out of or bearing a clear relation to. This may not be overbroad or be interpreted to mean anything which may have even a remote connection with the speech or vote given. We, therefore, cannot concur with the majority judgment in PV Narasimha Rao (supra). II. The Constitution envisions probity in public life 104. The purpose and object for which the Constitution stipulates powers, privileges and immunity in Parliament must be borne in mind. Privileges are essentially related to the House collectively and necessary for its functioning. Hence, the phrase in respect of must have a meaning consistent with the purpose of privileges and immunities. Articles 105 and 194 of the Constitution seek to create a fearless atmosphere in which debate, deliberations and exchange of ideas can take place within the Houses of Parliament and the state legislatures. For this exercise to be meaningful, members and persons who have a right to speak before the House or any committee must be free from fear or favour induced into them by a third party. Members of the legislature and persons involved in the work of the Committees of the legislature must be able to exercise thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority goes on to hold that: 47 . [ ] Such an anomalous situation would be avoided if the words in respect of in Article 105(2) are construed to mean arising out of . If the expression in respect of is thus construed, the immunity conferred under Article 105(2) would be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been given by a Member in Parliament or any committee thereof. The immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part of the cause of action for the proceedings giving rise to the liability. The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament even though it may have a connection with the speech made or the vote given by the Member if such an act gives rise to a liability which arises independently and does not depend on the making of the speech or the giving of vote in Parliament by the Member. Such an independent liability cannot be regarded as liability in respect of anything said or vote given by the Member in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Parliament under clause (2) of Article 105 is not violated. This Court understood the provision to necessarily mean that the politically sinful act of floor crossing is neither permissible nor immunized under the Constitution. This Court held that: 40. The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any Court for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. 43 . Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften (sic) the views expressed by the Members in the House have resulted in substantial modification, and even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose, consequences, and effect of the two jurisdictions are separate. A criminal trial differs from contempt of the House as it is fully dressed with procedural safeguards, rules of evidence and the principles of natural justice. 111. We therefore disagree with Mr Ramachandran that the jurisdiction of the House excludes that of the criminal court for prosecuting an offence under the criminal law of the land. We hold this because of our conclusion above that bribery is not immune under clause (2) of Article 105. A member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote. This action may bring indignity to the House of Parliament or Legislature and may also attract prosecution. What it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or Legislature. 112. We may refer to the opinion of SC Agrawal, J who arrived at the same view in which he was in the minority: 45. It is no doubt true that a Member who is found to have accepted bribe in connection with the business of Parliament can be punished by the House for contempt. But that is not a satisfactory solutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterestingly, the judgment of the majority in PV Narasimha Rao (supra) did not consider this question at all. The minority judgment, on the other hand, discusses this aspect and notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. Agarwal, J observed: 50. The construction placed by us on the expression in respect of in Article 105(2) raises the question: Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament? In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. The offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party. (emphasis supplied) 117. Under Section 7 of the PC Act, the mere obtaining , accepting or attempting to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The first explanation to the provision further strengthens such an interpretation when it expressly states that the obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained. 118. It is trite law that illustrations appended to a section are of value and relevance in construing the text of a statutory provision and they should not be readily rejected as repugnant to the section. Justice GP Singh, Principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining , agreeing to accept or agreeing to obtain illegal gratification is a sufficient condition. The act for which the bribe is given does not need to be actually performed. This was further clarified by Explanation (d) to the provision. In explaining the phrase a motive or reward for doing , it was made clear that the person receiving the gratification does not need to intend to or be in a position to do or not do the act or omission for which the motive/reward is received. 121. In Chaturdas Bhagwandas Patel v. State of Gujarat (1976) 3 SCC 46 a two-judge Bench of this Court reiterated that to constitute the offence of bribery, a public servant using his official position to extract illegal gratification is a sufficient condition. It is not necessary in such a case for the Court to consider whether the public servant intended to actually perform any official act of favour or disfavour. In the facts of the case, the public servant induced the complainant to give a bribe to get rid of a charge of abduction. It was later revealed that no complaint had even been registered against the complainant for the alleged abduction. However, the Court held that the mere demand and accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not covered by the immunity under Articles 105(2) and 194(2). This erroneously links the offence of bribery to the performance of the act. In fact, in the impugned judgment as well, the High Court has relied on this position to hold that the appellant is not covered by the immunity as she eventually did not vote as agreed on and voted for the candidate from her party. 125. The understanding of the law in the judgment of the majority in PV Narasimha Rao (supra) creates an artificial distinction between those who receive the illegal gratification and perform their end of the bargain and those who receive the same illegal gratification but do not carry out the agreed task. The offence of bribery is agnostic to the performance of the agreed action and crystallizes based on the exchange of illegal gratification. The minority judgment also highlighted the prima facie absurdity in the paradox created by the majority judgment. Agarwal, J observed that: 47 . [ ] If the construction placed by Shri Rao on the expression in respect of is adopted, a Member would be liable to be prosecuted on a charge of bribery if he accepts bribe for not speaking or for not giving his vote on a matter under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to lay out, in brief, the evolution and position of the law on privileges as it relates to the issue of a bribe received by a member of Parliament in other jurisdictions. We shall first direct our attention to the position of law in the United Kingdom followed by the United States of America, Canada, and Australia. I . United Kingdom 128. As we have explored above, the law on parliamentary privileges in UK was developed after a struggle by the House of Commons with the Tudor and Stuart Kings. In The King v. Sir John Elliot , (1629) 3 St. Tr. 294 at the peak of the confrontation between the Commons and the King in 1629, the King s Bench prosecuted three members of the House of Commons, Sir John Elliot, Denzel Hollis and Benjamin Valentine, for making seditious speech, disturbing public tranquillity, and violently holding the Speaker in his position to stop the House from being adjourned. The members of Parliament were found guilty, fined and imprisoned. Sir John Elliot was sent to be imprisoned in a tower where his health declined and he ultimately passed away. The report of the trial came to be published in 1667 and was noticed by the House of Commons. The House resolved that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts the jurisdiction of the Courts. As we shall elucidate below, the position as it stands allows for material from Parliamentary proceedings in the UK to be placed before the Court provided that it is not used to imply or argue mala fides behind the action. The courts in the UK have also interpreted a narrow scope for the nexus required for non-legislative activities to be immune. This has led to the holding that the jurisdiction of Parliament to discipline a member for taking bribe would not automatically oust the jurisdiction of the courts. 132. The parliamentary immunity attracted to speech made in Parliament came to be applied in the case of Ex Parte Wason , (1969) 4 QB 573. where a member of Parliament was accused of conspiring to make a statement which they knew to be false. A person had furnished a petition to Earl Russel to present before the House of Lords which charged the Lord Chief Baron of deliberately telling a falsehood before a Parliamentary committee. This would have led to the removal of the Lord Chief Baron upon an address by both Houses of Parliament for such a removal. Earl Russel, Lord Chelmsford, and Lord Chief Baron conspired to make speeches in the House o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in the Bill of Rights is: That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament . Now this is a charter for freedom of speech in the House. It is not a charter for corruption. To my mind, the Bill of Rights, for which no one has more respect than I have, has no more to do with the topic which we are discussing than the Merchandise Marks Act. The crime of corruption is complete when the bribe is offered or given or solicited and taken . We have recommended that the Statutes relating to corruption should all be replaced by one comprehensive Statute which will sweep away the present anomalies. If you are not an agent and Members of Parliament neither of this House nor of the other place are agents if you are not the member of a public body (and we are not members of public bodies) the Statutes do not touch you. At Common Law you cannot be convicted of bribery and corruption unless you are the holder of an office, and most of us are not the holders of an office. (emphasis supplied) 136. No action was taken by Parliament on this recommendation of the Salmon Report. However, in R v. Greenway, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of the Nolan committee came before the courts in R v. Parliamentary Commissioner for Standards Ex Parte Fayed, [1998] 1 WLR 669. and in Hamilton v. Al Fayed . [2001] 1 A.C. 395. 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ileges 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) 144. Lord Rodger in the course of his concurring opinion further shed light on the issue being amenable to the contempt jurisdiction of the House of Parliament. Lord Rodger held that this would be an overlapping jurisdiction and would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 147. In United States v. Thomas F Johnson, 383 US 169 (1966). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 149. 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 furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable 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 Beacon Press were not part and parcel of the legislative process. (emphasis supplied) 151. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 155. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment, 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. 159. 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 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 , [2005] 1 SCR 667. may be noted in some detail. 160. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 163. Similarly, the decision of the Supreme Court of Canada in Chagnon v. Syndicat de la fonction publique et parapublique du Qu be, [2018] 2 S.C.R. 687. relies on Vaid (supra) and adopts the test of necessity in similar terms. In that case, security guards who were employed by the National Assembly of Qu bec were dismissed from service by the President of the assembly. The dismissal was assailed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 165. Subsequently, the decision in White (supra) was also followed by the High Court of Australia in R v. Boston. (1923) 33 CLR 386 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Queen[2017] NSWCCA 221 , 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 . 167. The decisions in White (supra) and Boston (supra) were placed before the Court in PV Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated 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. (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) 171. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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) 174. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l college consists of elected MPs and MLAs. 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 66 The electoral college consists of elected MPs. 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the afternoon before the last day notified for making nominations under Section 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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. 182. 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 learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 184. 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. 185. Interestingly, Kuldip Nayar (supra) is yet another case where the Court relied on the minor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 187. 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 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 Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rende ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
