MLA Bribery | Seven-judge bench to reconsider a 25-year-old judgement on constitutional immunity for lawmakers

Legislative Immunity for Lawmakers Facing Bribery Charges

Judges: D.Y. Chandrachud CJI, A.S. Bopanna J, M.M. Sundresh J, J.B. Pardiwala J, Manoj Misra J

Today, a Constitution Bench led by Chief Justice D.Y. Chandrachud referred the Supreme Court’s judgement in P.V. Narasimha Rao v State (1998) to a seven-judge bench. The seven-judge bench will decide the extent of immunity for lawmakers under Articles 105(2) and 194(2) of the Constitution in cases of bribery.

In Narasimha Rao, the Court—in a 3:2 majority— had held that parliamentarians enjoy immunity under the Constitution against criminal prosecution with regard to their speech and votes in the House

Senior Advocate Raju Ramachandran and Attorney General R. Venkataramani argued against the reference stating that the facts of the present case (Sita Soren) did not pertain to the question in Narasimha Rao. On the other hand, Senior Advocate P.S. Patwalia, the court-appointed amicus, and Senior Advocate Gopal Sankaranarayanan argued in favour of the reference.


Article 194(2) states that ‘No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.’

Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), was accused of accepting a bribe to vote for a particular candidate in the Rajya Sabha Elections of 2012. The Central Bureau of Investigation (CBI) subsequently filed an official chargesheet against Sita Soren for allegedly accepting a bribe for a vote and a case was filed in the High Court of Jharkhand. In 2014, The Jharkhand High Court dismissed the plea filed by Sita Soren seeking to quash the criminal proceedings that had been initiated against her, claiming that she enjoyed immunity under Article 194(2) of the Constitution. The case has subsequently been appealed before the Supreme Court.

A 3 judge Bench of the Supreme Court heard the case on March 7th 2019 and took note of the decision of the Constitution Bench in P V Narsimha Rao v State(1998), where the Court (in a 3:2 majority) had held that parliamentarians enjoy immunity under the Constitution against criminal prosecution with regards to their speech and votes in the House. The Bench comprising CJI Ranjan Gogoi,  S Abdul Nazeer, and Sanjiv Khanna J accordingly referred the matter to a larger Bench.

Ramachandran: We are not challenging the decision in Narasimha Rao

Appearing for Sita Soren, the appellant in the present case, Ramachandran submitted that the facts in the present case were different from the facts in Narasimha Rao

His client is a member of the Jharkhand Legislative Assembly, belonging to the Jharkhand Mukti Morcha party. She had been prosecuted for allegedly receiving a bribe from an independent candidate for election to the Rajya Sabha. However, she ultimately voted for a member of her own party and not the independent candidate.

She moved the Jharkhand High Court to quash the complaints against her, claiming immunity under Article 194(2). However, after considering Narasimha Rao, the High Court refused to quash the complaints on the ground that she had not cast the vote for which she received the bribe. The protection under Article 194(2), the High Court said, only extends to speeches and votes in the House. 

Ramachandran claimed that the ratio in Narasimha Rao was not being contested here. He directed the Court’s attention to Kalpana Mehta v Union of India, a 2018 judgement that had held that Narasimha Rao was not relevant to the fact and therefore did not examine its correctness. (The Chief Justice, then Justice, had written the minority opinion in Kalpana Mehta). The same applied here, Ramachandran argued. This was a straightforward criminal appeal and, therefore, must go before a three-judge bench. 

Venkataramani: Seeking a reference is in the abstract

Adding to Ramachandran’s submissions, Attorney General R. Venkataramani argued that the facts did not seek a reconsideration of Narasimha Rao. 

The provisions in question, he said, applied to proceedings for “the business or function of the house.” In the present case, there was nothing related to the “function of the house.” CJI Chandrachud noted that the bribe was received by lawmakers so the functions of the house could take place in a particular way. Venkataramani responded by saying that members are entitled to protection only for proceedings of the house. He contended that proceedings refer to the formal interactions of the speaker in a properly constituted committee. 

Venkatarmani clarified that he was not commenting on the “rightness” of Narasimha Rao but was merely stating that the facts of the case at hand did not require a reference to a larger bench.

Towards the end, he also claimed that a review petition challenging Narasimha Rao had already been set aside by the Supreme Court. There was no further challenge. So referring the case to a larger bench would be to “act in the abstract.” 

The Chief remarked that while it was easy to dismiss the petition at this stage, it concerned a question that affects the “morality of our polity.” Therefore, they should not miss an opportunity to “straighten out the law.”

Patwalia: Purpose of constitutional immunity is not to make lawmakers “super citizens”

Patwalia, the amicus, submitted that now was the apt time to reconsider Narasimha Rao. He argued that Articles 105(2) and 194(2) are meant to protect members of Parliament for speeches in the house—to enable them to speak freely without fear of persecution. The provisions were not intended to make them “super citizens” who were immune to criminal charges.

In Narasimha Rao, Patwalia contended, Justice S.P. Bharucha, who wrote the majority opinion for himself and Justice S. Rajendra Babu, relied heavily on United States v Johnson (1966). However, that judgement had been “watered down” by dissents in United States v Brewster (1972). 

Further, Patwalia argued that Justice Bharucha had discarded the judgement in R v Currie, a 1992 case from the UK where Justice Bently had held that an MP was guilty for soliciting a bribe in abuse of his power. He suggested that it was Justice Aggarwal’s dissenting opinion that was in tune with case law from Canada, US, and Australia. 

Patwalia further pointed out that several distinct questions had arisen in Narasimha Rao. The first was whether Members of Parliament could be “public servants.” The second had to do with whether they were immune to bribery for a vote. The third question was if the Court was the appropriate authority to decide the matter. While all judges were in concurrence on the first question, there was a difference of opinion on the other questions. Therefore, Patwalia argued, it was essential for the Court to clarify the correct position. 

Sankaranarayanan: The judgement in Narasimha Rao presents an absurdity

Agreeing with the amicus, Sankaranarayanan, appearing for an intervener, added that the Narasimha Rao judgement was rather absurd as it gave immunity to a lawmaker who took a bribe and voted as per the bargain of the bribe. However, it refused to protect the one who took a bribe, had a change of mind and then did not cast the vote in line with the bargain. 

The message being conveyed through Narasimha Rao, Sankaranarayanan said, was that one was welcome to take a bribe as long as they acted in accordance with its bargain. He informed the Court that this “absurdity” had led to a lot of criticism even back in the day and read excerpts from A.G. Noorani’s critique of the judgement to support this contention. 

Further, he argued that countries like the US and the UK had made it clear that there would be no immunity for bribery. That’s why the jurisprudence in India—which was based on a “wafer-thin majority” of Narasimha Rao—stood out like a “sore thumb.” 

CJI: Time to reconsider Narasimha Rao has arrived

Dictating the Order, the Chief held that the Bench did not agree with the view that the correctness of Narasimha Rao “doesn’t arise in this case.” He reasoned that the decision of the Jharkhand High Court and the appellant’s defence relied on that judgement. 

He went on to point out the differences in the opinions of Justice Bharucha and Justice Aggarwal and agreed with the view of the amicus that the decision needed to be reconsidered. 

The Chief explained that lawmakers should be free to express their views on the floor of the House without fear of consequences. However, Articles 105(2) or 194(2) do not seem to give immunity from the “launch of criminal proceedings for violation of criminal law which may arise independently of the exercise of rights and duties as a member of parliament.”

In Kalpana Mehta, the Chief had noted that the decision in Narasimha Rao would be reconsidered at an appropriate time. That time, the Chief said, was now.