The Supreme Court on Monday held that Members of Parliament (MPs) and Members of Legislative Assembles (MLAs) are not immune to criminal charges if they give or accept bribes to speak or vote (or abstain from doing so) in a certain way within the legislative house.

In doing so, the Constitution Bench of the Court overruled a 26-year-old judgment in PV Narasimha Rao v. State (CBI/SPE), rendered by a five-judge bench of the Supreme Court in 1998.

This 1998 ruling had held by a 3:2 majority that legislators taking bribes and voting or speaking in a certain way (in response to the bribe) in parliament cannot be prosecuted for bribery, since they enjoy immunity or parliamentary privilege under Article 105 (2) of the Constitution.

The judgment came on a plea by Congress leader PV Narasimha Rao, who was among the Congress leaders accused of bribing MPs of the Jharkhand Mukti Morcha (JMM) and the Janata Dal (Ajit Group)/ JD (AS) to vote against a no-confidence motion moved against the Rao government in 1993.

Rao, as Prime Minister, headed a minority government in the Lok Sabha between 1991 and 1996, even though the Indian National Congress had managed to scrape through and emerge as the single-largest party in the 1991 Lok Sabha elections.

When a no-confidence motion was moved against the Rao-led Congress government in 1993, the Congress party had 251 members and was short of 14 members to constitute a simple majority in the then-528-strong Lok Sabha.

After days of debate, the no-confidence motion was defeated with 265 votes against the motion and 251 votes for it.

But the matter came back to haunt Rao three years later in 1996 (by which time his term as Prime Minister was over) when he and other congress leaderswere accused of having bribed MPs from the JMM and JD(AS), to vote against the motion.

A complaint with these allegations was lodged by Ravindra Kumar of Rashtriya Mukti Morcha (RMM) with the Central Bureau of Investigation (CBI).

The CBI case was filed against the alleged bribe-givers (Rao and other Congress leaders) and the alleged bribe-takers.  

A 1997 challenge to this complaint was eventually heard by the Supreme Court bench comprising Justices SC Agrawal, Dr. AS Anand, SP Bharucha, S Rajendra Babu and GN Ray.

Three opinions were delivered by the five-judge bench.

Three of the five judges concluded that a legislator taking a bribe and doing an act because of the bribe in the legislative house was immune from prosecution for bribery by virtue of Article 105 of the Constitution which grants immunity “in respect of anything said or any vote given by him in Parliament or any committee thereof.”

Interestingly, this did not mean Rao got respite from the Supreme Court as it held that the bribe-givers (Rao and other congress leaders) would still be liable for prosecution, as would Ajit Singh, a JD (Ajit Group) MP who allegedly took the bribe but refrained from voting despite the bribe.

The opinion rendered by Justice Bharucha on behalf of himself and Justice Babu stated:

“Our conclusion is that the alleged bribe takers, other than Ajit Singh, have the protection of Article 105(2) and are not answerable in a court of law for the alleged conspiracy and agreement. The charges against them must fail. Ajit Singh, not having cast a vote on the no- confidence motion, derives no immunity from Article 105(2).”

In other words, these two judges reasoned that since Ajit Singh did not vote at all on the no-confidence motion, he had not done anything in the parliament and could not claim immunity that is only granted to legislators who say something or cast a vote in the house. Without such immunity, he could still be prosecuted for bribery, the two judges opined.

Since Ajit Singh has to face bribery charges, the Court went on to reason that the persons who allegedly gave him the bribe would also be exposed to such action.

“What is the effect of this upon the alleged bribe givers? In the first place, the prosecution against Ajit Singh would proceed, he not having voted on the non- confidence motion and, therefore, not having the protection of Article 105(2). The charge against the alleged bribe givers of conspiracy and agreement with Ajit Singh to do an unlawful act would, therefore, proceed,” the two judges opined.

The two judges proceeded to hold that the other alleged bribe-takers “who voted upon the no-confidence motion” are entitled to immunity and that criminal trial should proceed against Ajit Singh (who took a bribe, but did not vote) and PV Narasimha Rao, Satish Sharma, V Rajeswar Rao, Ram Linga Reddy, M Veerappa Moily and Bhajan Lal (Congress MPs/ MLAs who were allegedly part of the conspiracy to bribe)

Justice GN Ray concurred with Justice Bharucha and Justice Babu with respect to their opinion that legislators enjoyed absolute immunity in parliament with respect to anything done or said in the house.

“Freedom of speech guaranteed under sub Article (1) of Article 105 is independent of the freedom of speech guaranteed under Article 19 of the Constitution and such freedom of speech under Article 105 (1) is not inhibited or circumscribed by the restrictions under Article 19 of the Constitution. In order to ensure effective functioning of Parliamentary democracy, there was a felt need that a Member of Parliament will have absolute freedom in expressing his views in the deliberations made in the door of Parliament. Similarly he must enjoy full freedom in casting his vote in Parliament,” Justice Ray said.

Two decades later, a seven-judge bench of the Supreme Court today termed the majority view “paradoxical.”

“To read Articles 105(2) and 194(2) in the manner proposed in the majority judgment results in a paradoxical outcome. Such an interpretation results in a situation where a legislator is rewarded with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but may eventually decide to vote independently will be prosecuted. Such an interpretation belies not only the text of Articles 105 and 194 but also the purpose of conferring parliamentary privilege on members of the legislature,” the bench led by Chief Justice of India DY Chandrachud said today.

Meanwhile, the opinion authored by Justice Agrawal on behalf of himself and Justice Anand in the PV Narasimha Rao case was more aligned with the Court’s judgment today.

“A Member of Parliament does not enjoy immunity under Article 105(1) or under Article 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof,” the minority opinion stated.

PV Narasimha Rao, in any case, had to face a criminal trial although he was eventually acquitted by the Delhi High Court in 2002.

Corrigendum: An earlier version of this article erroneously referred to Justice SP Bharucha as the Chief Justice of India at the time of delivering the PV Narasimha Rao judgment in 1998. The error has been rectified and is regretted. Justice Bharucha was appointed the Chief Justice only in 2001.