MLA Bribery Seven-Judge Constitution Bench | Day 1: Counsels argue about the correctness of Narasimha Rao

Legislative Immunity for Lawmakers Facing Bribery Charges

Judges: D.Y. Chandrachud CJI, A.S. Bopanna J, M.M. Sundresh J, P.S. Narasimha J, J.B. Pardiwala J, P.V. Sanjay Kumar J, Manoj Misra J

Today, a seven-judge Bench led by Chief Justice of India D.Y. Chandrachud heard arguments on the correctness of P.V. Narasimha Rao v State (1998). In that case, a five-judge bench of the Supreme Court—in a 3:2 majority—had held that parliamentarians enjoy constitutional immunity against criminal prosecution in connection with their speeches and votes in the House. Articles 105(2) and 194(2) extend this constitutional privilege and immunity to parliamentarians and legislative assembly members respectively.  

Senior Advocate Raju Ramachandran, arguing in favour of the precedent, appeared for Sita Soren, a member of the Jharkhand Mukti Morcha (JMM) who had been accused of taking a bribe to vote for an independent candidate in the Rajya Sabha elections of 2012. Soren eventually voted for a candidate from the JMM, and not the independent candidate. Senior Advocates D.S. Patwalia (amicus curiae) and Gopal Sankaranarayanan (appearing for an intervenor) argued that the dissenting opinion of Narasimha Rao is the correct view.  


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.

On 20 September 2023, a  five-judge Constitution Bench 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.

Ramachandran: Narasimha Rao was a “carefully considered” and “well-reasoned” judgement

Ramachandran argued that overruling Narasimha Rao is “unwarranted” based on tests laid down by the Supreme Court on the question of overturning judicial precedents. He referred to Keshav Mills Co. Ltd v Commissioner Of Income Tax (1965) which held that the overruling a judgement should depend on relevant considerations such as the nature of the error in the judgement, questions of law and points which remain unnoticed, the impact of the error made by the judgement, precedential value, and whether overturning the judgement would lead to any “public inconvenience, hardship or mischief.” 

He further relied on Shah Faesal v Union of India (2020) which observed that “courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development.” According to Ramachandran, Narasimha Rao did not fall into the criteria laid down by these judgements. 

In response to Justice S.C. Agarwal’s dissenting opinion in Narasimha Rao, Ramachandran contended that the constitutional privileges and immunities are not “antithetical” to the rule of law. Ramachandran argued that immunities are a “distinct pillar in the constitutional edifice.” He relied on Blackstone’s commentary to explain that the constitutional privilege was made to ensure that members are not “oppressed by the power of the crown” or, in this context, a “democratic executive.” 

He submitted that the legislators have “absolute protection” if there is a nexus between the act and their conduct in the assembly. Ramachandran highlighted that the Constitution has left the factor of “political morality” i.e. the moral implications in the hands of the Parliament. Speakers of the parliament have the power to expel members, he submitted. He argued that “it is not for the court to find perfect solutions for all moral dilemmas.” 

Article 105(2) says that “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee.” 

Ramachandran submitted that Justice Agarwal “erred” when he interpreted the meaning of “in respect of” to mean “arising out of”. According to Justice Agarwal, “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 already been made or a vote that has already been given.” 

Simply put, if the Article is narrowly interpreted, the immunity from liability would only come into play if a speech is made or a vote is cast. The result of this interpretation, according to Justice Agarwal, was that “the immunity would not be available in a case where a speech has not been made or a vote has not been given.” This would then also cover members who were bribed to not speak or vote in the parliament. Such an “anomalous situation”, Justice Agarwal argued, would be avoided if “in respect of” is read as “arising out of.” This means that immunity would not extend to anything that occurred before a speech or a vote. 

Ramachandran argued that “we would be doing violence to language if we read ‘in respect of’ in this manner, only due to moral outrage.” He argued that the majority in Narasimha Rao was “anguished and shocked” with the act of accepting a bribe but continued to “read the constitution as written.”

Attorney General R. Venkataramani had previously argued against the reference of Narasimha Rao to a larger bench. Venkataramani reasoned that the Rajya Sabha election and a legislative vote (for a bill) are distinct. Ramachandran disagreed with Venkataramani. He argued that the MLA would enjoy immunity in such an instance as well because it is still a part of the legislative function. Ramachandran concluded his arguments by stating that Narasimha Rao was “carefully considered” and “well-reasoned.” 

Patwalia: Immunity granted to “protect the integrity of the legislative process”

Patwalia contended that Justice Agarwal’s dissenting opinion was the “correct view” because it considers “integrity” as the main objective of the two provisions. He argued that the object of the Articles was not to protect legislators from ordinary criminal laws, but to “protect the integrity of the legislative process.” Patwalia argued that the immunity does not extend to any acts that occurred prior to a speech or a vote:, an offence of bribery is “complete” once the offender has “received or agreed to receive money for a promise to act in a certain way.” This has no bearing on the “actual performance of the bargain.” Patwalia disagreed with the majority opinion in Narasimha Rao which held that “in respect of” must receive a broad meaning as long as there is a nexus between the act of bribe and a vote or a speech. 

Sankaranarayanan: Narasimha Rao was not “embraced by the Court”

Sankaranarayanan argued against two submissions of Ramachandran: the precedential value of Narasimha Rao and the power of the parliament to expel members. He pointed out that Narasimha Rao was not “embraced by the Court” and that the correctness of the majority opinion was doubted on multiple occasions. He cited the examples of Raja Rampal v Speaker (2007) and Kalpana Mehta v Union of India (2018) to buttress his point. He submitted that the dissenting opinion, on the other hand, has been referred to by Constitution Benches in Kuldip Nayar v Union of India (2006) and Amarinder Singh v Special Committee (2010).  

Sankaranarayanan then argued that the powers of the parliament to expel members are completely different from criminal prosecution, suggesting that both can function independently. 

Sankaranarayanan submitted that the immunity granted to legislators “should be in the narrowest fashion.” He contended that a broad interpretation of the word “any” under the provision would bring anything under the “cloak of immunity.” He stated that it is not the “intention of the law” to grant immunity to a person who would be “guilty on the streets” but not in  Parliament. 

Similar to both Justice Agarwal and Patwalia, Sankaranarayanan argued that even an agreement to accept a bribe before voting would amount to an offence. This would also apply in situations where a legislator receives a bribe after committing an act which was promised to be carried out.

Arguments are expected to continue tomorrow on 5 October 2023