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TMI Blog2024 (6) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 8 C. Submissions 14 D. Reconsidering PV Narasimha Rao does not violate the principle of stare decisis 22 E. History of parliamentary privilege in India 34 F. Purport of parliamentary privilege in India &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; 79 H. International position on bribery vis-à-vis privileges 87 I. United Kingdom 87 II. United States of America &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Legislative Assembly of Jharkhand. The allegation against the appellant is that she accepted a bribe from an independent candidate for casting her vote in his favour. However, as borne out from the open balloting for the Rajya Sabha seat, she did not cast her vote in favour of the alleged bribe giver and instead cast her vote in favour of a candidate belonging to her own party. The round of election in question was annulled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Legislature having the freedom to express themselves and to cast their ballots without fear of reprisal or consequences. In other words, the object of Article 105(2) or Article 194(2) does not prima facie appear to be to render immunity from the launch of criminal proceedings for a violation of the criminal law which may arise independently of the exercise of the rights and duties as a Member of Parliament or of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-confidence motion. Notably, one MP belonging to the JD (AS), namely, Ajit Singh, abstained from voting. 9. A complaint was filed before the Central Bureau of Investigation "CBI" alleging that a criminal conspiracy was devised by which the above members belonging to the JMM and the JD (AS) entered into an agreement and received bribes to vote against the no-confidence motion. "Bribe-takers" It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 protected against proceedings where the cause of action is their speech or vote. To enable them to participate freely in parliamentary debates, MPs need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is not difficult to envisage an MP who has made a speech or cast a vote that is not to the "liking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 speech or vote and gives rise to liability which arises independently of the speech or vote; 13.4. The offence of criminal conspiracy is made out on the conclusion of an agreement to commit the offence of bribery and the performance of the act pursuant to the agreement is not of any consequence. Similarly, the act of acceptance of a bribe for spea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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; 16.3. The concept of constitutional privileges and immunities is not in derogation of the Rule of Law, but it is a distinct feature of our constitutional structure. The majority judgment preserves the privilege of MPs and MLAs to protect their dignity as legislators and is not opposed to the rule of law; 16.4. The majority judgment gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 treated as a matter of business or function of the legislature. 18. In response to the learned Attorney General's submissions that the polling for Rajya Sabha cannot be considered a proceeding of the House, Mr Ramachandran has submitted that the cases relied on by the learned Attorney General were not rendered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immunity not available to the common person; 20.3. The expression "in respect of" must be read narrowly. It must be tied down to 'legitimate acts' that are a part of the legislative process involving speech or a vote in Parliament or before a committee. Any other interpretation would violate the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 was first placed before a bench of two judges who referred the case to a bench of three judges. The bench of three judges referred the case to a bench of five judges. In consonance with judicial discipline, the correctness of the decision in PV Narasimha Rao (supra) was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 should not be interfered with by the Court. We do not consider it appropriate for this Court to confine itself to such a rigid understanding of the doctrine of stare decisis. The ability of this Court to reconsider its decisions is necessary for the organic deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also emphasized the distinction between deviating from a decision dealing with the interpretation of statutory provisions and an interpretation of the Constitution, while opining that while an incorrect interpretation of a statute may be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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 dealing with the interpretation of the Administrative Tribunals (Amendment) Act, 2006 and the appointment of a judicial member of the Central Administrative Tribunal. The two-judge Bench observed that it was bound by the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case, it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreat 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 legislature as defined in the Constitution. Rather, this judgment has a limited remit which is to adjudicate on the correct interpretation of Article 105 and Article 194 of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lege 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 democracy accentuates the right of participation in deliberation, in decision-making, and in contestation of public decision-making. Contestation before the courts post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 States. This is the protection afforded to individual legislators. The recognition of that right is premised on the need to secure the institutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 their freedom of speech was construed as conferring inherent rights and privileges on them. The Council therefore attempted to assume to itself powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses 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) Subject to the rules and standing orders affecting the Council, there shall be freedom of speech in the Governors' Legislative Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encing 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 shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 to the rules and standing orders regulating the procedure of Parliament, there shall be fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable; 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 freedom of a member of Parliament to cast a vote is also protected by the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 vested after a struggle between Parliament and the King. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court has held that in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 in our country today are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and is d ..... 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. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by extension 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 enjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of legislative functions. KG Balakrishnan, 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 executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izens. Thus, enquiry or investigation into an allegation of corruption against 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arliament 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 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 relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volution of law in this regard in the UK observed that: "36. [...] it is evident that a person committing a criminal 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 privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anvil of the tests laid down above. The ability of a member to speak is essentially tethered to the collective functioning of the House and 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 (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of speech or voting inside the House or committee which are absolute. The phrase "in respect of" applies to the collective phrase "anything said or any vote given." The words "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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radoxical result which would emerge if members were given immunity from prosecution for their speech or vote but would not be protected if the bribe was received for not speaking or not voting. The minority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollohan v. Zachillhu 1992 Supp (2) SCC 651. while deciding on the validity of the Constitution (Fifty Second Amendment) Act 1985 which introduced the Tenth schedule to the Indian Constitution opined that the freedom of speech 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute. The power to punish for criminal wrongdoing emanates from the power of the state to prosecute offenders who violate the criminal law. The latter applies uniformly to everyone subject to the sanctions of the criminal law of the land. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bribe well before the vote is given or speech made in Parliament. It has been urged that the performance of the promise is irrelevant to the offence being made out, and hence, the distinction made in PV Narasimha Rao (supra) is entirely artificial. 115. Interestingly, 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 offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanations. - (d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (emphasis supplied) 120. The unamended text of Section 7 of the PC Act also indicates that the act of "accepting", "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 actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the transaction of parliamentary business. 124. The majority judgment in PV Narasimha Rao (supra) did not delve into when the offence of bribery is complete or the constituent elements of the offence. However, on the facts of the case, the majority held that those MPs who voted as agreed were covered by the immunity, while those who did not vote at all (Ajit Singh) were 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liamentary privileges in India. The jurisprudence on parliamentary privileges in India has since grown in its own right and we have referred to the rich jurisprudence of this Court and the history of parliamentary privileges in India. However, since both the majority and the minority judgments in PV Narasimha Rao (supra) have relied heavily on jurisprudence in foreign jurisdictions, it is appropriate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers only. It immunizes the freedom of speech and debates or proceedings in Parliament and stipulates that it shall not be 'impeached or questioned.' Secondly, Article IX stipulates that the proceedings in Parliament may only be 'impeached or questioned' in Parliament. This has led to debate as to whether any material from Parliamentary proceedings can be placed before the Courts and whether the jurisdiction of Parliament ousts 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting in his Parliamentary capacity within the ambit of the criminal law." While presenting his report to the House of Lords, Lord Salmon said: "To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake. The passage 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes the offence of corruption applicable to all. This led to a sequence of events which ultimately culminated in the enactment of the Bribery Act 2010. The Act covers instances where members of Parliament engage in corruption. 138. While efforts were being made by lawmakers, the courts in UK continued answering questions on the scope of Article IX of the Bill of Rights on members of Parliament who engage in bribery. The allegations which had led to the constitution of the Nolan committee came before the courts in R v. Parliamentary Commissioner for Standards Ex Parte Fayed, [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed for improper use. 141. The question of reliance on legislative material was further weighed in favour of the legislature in 2009. In Office of Government Commerce v. Information Commissioner (Attorney General intervening), [2009] 3 WLR 627 the Queen's Bench Division held that opinions of parliamentary committees would be irrelevant before a court given the nature of their work. This holding was influenced by the words and associated history of Article IX of the Bill of Rights, which is worded more broadly than Clause (2) of Articles 105 and 194 of the Constitution of India. The minority opinion in PV Narasimha Rao (supra) throws light on the issue as follows: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the freedom of speech in the House. The Court opined that the provision must be given a narrower view and held that the prosecution would not violate the privilege of Parliament. The Court relied on the holding in Greenway (supra) that the nexus between a bribe and a speech made in Parliament does not oust the jurisdiction of the courts. The Court therefore opined that submitting a claim for expenses and taking part in such proceedings has an even more tenuous link to parliamentary privileges and cannot be immune from prosecution. The Court applied the test of whether the action of the member of Parliament which was being questioned bore on the core or essential function of the Parliament. Lord Phillip opined that: "47. The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." (emphasis supplied) Courts in the US have given a broad interpretation to the Speech and Debate clause so far as legislative acts of the members of Congress are concerned. Beyond that the Courts have held that a member of Congress may be liable under a criminal statute of general application. All that is prohibited is reliance on the official acts of the member to prove the prosecution case. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccur in the regular course of the legislative process and into the motivation for those acts. So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members. [...] 62. The question is whether it is necessary to inquire into how appellee spoke, how he debated, how he voted, or anything he did in the chamber or in committee in order to make out a violation of this statute. The illegal conduct is taking or agreeing to take money for a promise to act in a certain way. There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise." (emphasis supplied) The US Supreme Court therefore opined that the privileges exercised by members of Congress individually was to preserve the independence of the legislature. The independence was exactly what would be compromised if the Speech and Debate Clause were to be understood as providing immunity to acts of bribery by member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch. And an inquiry into the purpose of a bribe 'does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.' 383 U.S., at 185, 86 S.Ct., at 758. 64. Nor does it matter if the Member defaults on his illegal bargain. To make a prima facie case under this indictment, the Government need not show any act of appellee subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act. If, for example, there were undisputed evidence that a Member took a bribe in exchange for an agreement to vote for a given bill and if there were also undisputed evidence that he, in fact, voted against the bill, can it be thought that this alters the nature of the bribery or removes it from the area of wrongdoing the Congress sought to make a crime? 67. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts have extended the privilege to matters beyond pure speech or debate in either House, but 'only when necessary to prevent indirect impairment of such deliberations.' United States v. Doe, 455 F.2d, at 760. ... 27. Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication. [ The sole constitutional claim asserted here is based on the Speech or Debate Clause. We need not address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials. Of course, Art. I, § 5, cl. 3, requires that each House 'keep a Journal of its Proceedings, and fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant, who was funded by public institutes for his research, was named by the Senator. The press release was circulated to over one hundred thousand people including agencies which funded the research of the complainant. The complainant filed a suit claiming loss of respect in his profession, loss of income and the ability to earn income in the future. The District Court granted summary judgment in favour of the Senator, holding that the publication fell under the 'information function' of Congress and would be immune under the Speech and Debate Clause. 154. The US Supreme Court held that the intention of the Speech and Debate Clause was not to create an absolute privilege in favour of members of Congress. The clause, the Court held, is only attracted to "legislative activities" and would not protect republishing of defamatory statements. The Court held that: "Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. ... Claims under the clause going beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment. The Court conclusively held that the offence of bribery and conspiracy to bribe members of the legislature fell within the jurisdiction of the court and such an inquiry would not encroach on parliamentary privilege. Further, it was held that if the defendants were proceeded against by the court, they may also be parallelly inquired against by the legislature for violation of rights and privileges. The proceedings are for different offences, may be conducted in their own right and such situations do not constitute a case of double punishment or double jeopardy. The Court (speaking through Wilson, CJ) held: "It is to my mind a proposition very clear that this Court has jurisdiction over the offence of bribery as at the common law in a case of this kind, where a member of the Legislative Assembly is concerned either in the giving or in the offering to give a bribe, or in the 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 defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment we have found that for the past more than 100 years legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative activities and, with the exception of the United Kingdom, most of the Commonwealth countries treat corruption and bribery by Members of the legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all other public functionaries are subject to such laws. We are, therefore, unable to uphold the above contention of Shri Thakur." (emphasis supplied) The majority judgment, on the other hand, makes a reference to Bunting (supra) but chooses to not rely on the judgment or any other judgment by Canadian courts placed on record in the case. 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 'necessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irely unrelated to any business which is in course of transaction or is in a more general sense before the House as having been ordered to come before it in due course." (This passage was referred to with approval in Re Clark.) Thus in R. v. Bunting (1885), 7 O.R. 524, for example, the Queen's Bench Division held that a conspiracy to bring about a change in the government by bribing members of the provincial legislature was not in any way connected with a proceeding in Parliament and, therefore, the court had jurisdiction to try the offence. Erskine May (23rd ed.) refers to an opinion of "the Privileges Committee in 1815 that the re-arrest of Lord Cochrane (a Member of the Commons) in the Chamber (the House not sitting) was not a breach of privilege. Particular words or acts may be entirely unrelated to any business being transacted or ordered to come before the House in due course. All of these sources point in the direction of a similar conclusion. In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislative assembly is a criminal offence. I am clearly of the opinion that such an attempt is a misdemeanor at common law. Although no case can be found on an. information or indictment against a person for attempting to bribe a member of the Legislature, there are several cases which show that such an attempt is an offence. ... The injury to the public is more direct and is certainly greater in tampering with the person actually elected than with the persons who elect him. A person sent into the Legislature by means of votes corruptly obtained may be an able and conscientious member; but a legislator who suffers his vote to be influenced by a bribe does that which is calculated to sap the utility of representative institutions at their foundation. It would be a reproach to the common law if the offer to, or the acceptance of, a bribe by such a person were not an offence." (emphasis supplied) Similarly , Justice Hargrave also observed as follows : "These numerous modern authorities clearly establish that the old common law prohibition against bribery has been long since extended beyond mere judicial officers acting under oaths of office, to all persons whatever holding offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce or put pressure on a Minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside Parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in Parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest and makes him a servant of the person who pays him, instead of a representative of the people." (emphasis supplied) 166. Courts in Australia have also followed the position of law laid down by the Supreme Court of the UK in Chaytor (supra) that the House of Commons does not have exclusive jurisdiction to deal with criminal conduct by members of the House. The only exception to such cases is when the existence of parliamentary privilege makes it virtually impossible to determine the issues or if the proceedings interfere with the ability of the House to conduct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 404 Madhukar Jetly v. Union of India, (1997) 11 SCC 111. and Kuldip Nayar v. Union of India. (2006) 7 SCC 1. 169. Such an argument, although attractive at first blush, appears to be misconceived. In essence, the question is whether votes cast by elected members of the state legislative assembly in an election to the Rajya Sabha are protected by Article 194(2) of the Constitution. Before addressing the judgments relied on by the learned Attorney General, we will analyze the provisions of the Constitution that govern this interesting question of constitutional interpretation. 170. Article 80 governs the election of members to the Council of States or the Rajya Sabha. The provision reads as follows: "80. Composition of the Council of States. - (1) The Council of States shall consist of- (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories. (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to it. Justice GP Singh, Principles of Statutory Interpretation, 15th Ed. (2021), 188-189; Bengal Immunity Company Limited v. State of Bihar, (1955) 2 SCR 603. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Hegde, J (speaking for himself and A K Mukherjea, J) observed as follows: "620. [...] To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal note which says "Procedure for amendment of the Constitution". Marginal note plays a very little part in the construction of a statutory provision. It should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negative the existence of the power im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assembly. comprising the Governor and the Houses of the Legislature. It functions indefinitely and continues to exist even when the Governor has not summoned the House. 176. The use of the phrase "in the Legislature" instead of "House of Legislature" is significant. There are several parliamentary processes which do not take place on the floor of the House, i.e. when it is in session, having been summoned by the Governor. For instance, there are ad hoc committees and standing committees which examine various issues, including matters of policy or government administration. Many of these committees do not deliberate on laws or bills tabled in the House or cease to function when the 'House' is not sitting. There appears to be no reason why the deliberations that take place in such committees ("anything said") would not be protected by parliamentary privilege. 177. The elections to the Rajya Sabha conducted under Article The electoral 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipate or are not participating in 'law-making'. One of these privileges is the parliamentary privilege bestowed on members of the legislative assembly under Article 194. The Court held as follows: "18. [...] The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words "sitting and voting" in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings of the House and the vote cast at such an election does not constitute a vote given at a sitting of the House. Pertinently, both Pashupati Nath Sukul (supra) and Madhukar Jetley (supra) did not relate to any question bearing on the interpretation and scope of Article 194(2) or any claim for parliamentary privilege. 180. As stated above, there is no dispute with the proposition that elections to the Rajya Sabha are not part of the law-making functions and do not take place during a sitting of the House. However, the text of Article 194 consciously uses the term 'Legislature' instead of 'House' to include parliamentary processes which do not necessarily take place on the floor of the House or involve 'law- making' in its pedantic sense. 181. Finally, the learned Attorney General placed reliance on Kuldip Nayar (supra). In this case, a Constitution bench of this Court was adjudicating the validity of an amendment to the Representation of the People Act, 1951 by which (a) the requirement that a candidate for elections to the Rajya Sabha be an elector from a constituency in the state was removed; and (b) an open ballot was introduced in the elections to the Rajya Sabha. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature." (emphasis supplied) 183. The protection under Article 105 and Article 194 guarantees that the vote of an elected member of Parliament or the state legislature, as the case may be, cannot be the subject of proceedings in court. It does not guarantee a "secret ballot". In fact, even when elected members of Parliament or of the state legislature vote on Bills during a sitting of the House, which undisputedly falls within the ambit of Articles 105 and 194, they are not assured of a secret ballot. While voting is ordinarily carried out by a voice vote, members of the legislature can seek what is referred to as a "division vote." In such a case the division of votes, i.e. which member voted in favour or against the motion is visible to the entire House and the general public. It cannot be gainsaid that the purpose of parliamentary privilege under Article 194(2) is not to provide the legislature with anonymity in their votes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents the federal structure of India. Both the existence and the role of the Rajya Sabha constitute a part of the basic structure of the Constitution. The architecture of our Constitution envisions the Rajya Sabha as an institution of federal bicameralism and not just as a part of a simple bicameral legislature. Its nomenclature as the "Council of States" rather than the "Senate" appropriately justifies its federal importance. 1108. [...] As a revising chamber, the Constitution-Makers envisioned that it will protect the values of the Constitution, even if it is against the popular will. The Rajya Sabha is a symbol against majoritarianism. 1110. Participatory governance is the essence of democracy. It ensures responsiveness and transparency. An analysis of the Bills revised by the Rajya Sabha reveals that in a number of cases, the changes recommended by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually carried out. The Dowry Prohibition Bill is an example of a legislation in which the Rajya Sabha's insistence on amendments led to the convening of a joint sitting of the two Houses and in that sitting, one of the amendments suggested by the Rajya Sabha was ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 188.1. The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents of this Court. The judgment of the majority in PV Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered; 188.2. Unlike the House of Commons in the UK, India does not have 'ancient and undoubted' privileges which were vested after a struggle between Parliament and the King. Privileges in pre-independence India were governed by statute in the face of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution; 188.3. Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review; 188.4. An individual mem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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