Seven-judge Bench to decide the limits of immunity enjoyed by legislators for things said and votes given inside a legislative body

A seven-judge Constitution Bench will decide the contours of constitutional immunity against prosecution granted to members of Parliament and state assemblies “in respect of anything said or any vote given in the Parliament or any committee thereof” by them.

THE Supreme Court on Wednesday referred the question of the extent of immunity from prosecution granted to members of Parliament (MPs) and members of legislative assembly (MLAs) to a Bench of seven judges.

The Constitution Bench, the composition of which is yet to be notified, will examine the correctness of the view expressed by a Constitution Bench of five judges in P.V. Narasimha Rao versus State (CBI-SPE) (1998).

In Narasimha Rao, the Supreme Court had held (by a 3:2 majority) that Article 105(2) of the Constitution protects a legislator  accused of conspiring to act in a certain way against proceedings in a court of law.

Article 105(2) and the corresponding provision for state legislatures, Article 194(2), declare that an MP or MLA would not be liable to any proceedings in any court “in respect of anything said or any vote given by him in the Parliament or any committee thereof”.

During the hearing yesterday, the Chief Justice of India (CJI) Dr D.Y. Chandrachud observed that the issue is one which “deeply affects the morality of our polity” and wondered why the court should not take the opportunity to “straighten the law”.

Origins of the reference

The reference by the Supreme Court originates from a case of alleged bribe-taking against Jharkhand MLA Sita Soren.

Soren was accused of receiving a bribe to vote for a particular candidate, R.K. Agarwal, in the 2012 Rajya Sabha elections. Soren had cast her vote in the election, but not in favour of Agarwal.

A first information report was filed against Soren under certain provisions of the Indian Penal Code, 1860 and Prevention of Corruption Act, 1988 in 2012. The case was transferred to the Central Bureau of Investigation for investigation on the Jharkhand High Court’s direction.

Soren moved the Jharkhand High Court in 2013 for quashing of proceedings against her, contending the instant prosecution was against the mandate of the constitutional provision and the decision of the Supreme Court in P.V. Narasimha Rao.

Soren argued that the immunity against prosecution is liable to be granted by the mere fact of casting a vote in the house, and that the existence of a conspiracy would have no bearing on the application of the immunity.

The high court dismissed her petition stating that the alleged act of receiving money from Agarwal had no nexus with the alleged conspiracy and agreement under which she had allegedly received money.

The ‘nexus’ between the bribe and the alleged conspiracy was a necessary condition for the application of P.V. Narasimha Rao in the case, the high court ruled, while refusing to quash the prosecution against Soren.

In September 2014, a two-judge Bench of the Supreme Court, hearing an appeal against the high court’s Order, opined that since the issue was of “substantial and general public importance”, it should be placed before a Bench of three judges.

In March 2019, the case was referred to a Bench of five judges by a Bench comprising then Chief Justice of India Ranjan Gogoi and Justices Nazeer and Sanjiv Khanna.

In its reference Order, the court stated that having regard to the “wide ramifications of the question that has arisen, the doubts raised and issue being of substantial public importance” the case was fit for reference to a larger Bench.

In November 2022, a Constitution Bench headed by Justice Abdul Nazeer and comprising Justices B.R. Gavai, B.V. Nagarathna, V. Ramasubramanian and A.S. Bopanna heard Soren’s appeal against the high court’s Order.

Representing Soren, senior advocate Raju Ramachandran argued that the high court’s reasoning was erroneous since it implied that if Soren had voted in accordance with the alleged bribery conspiracy, she would have enjoyed immunity from prosecution.

Justice Gavai had summed up the implication of the high court’s decision by stating, “Going by the analogy of the high court, had you voted in favour of R.K. Agarwal, then you would have been entitled to immunity.”

Using an analogy from contract law, Justice Ramasubramanian had asked “So this means the breach of contract is not permissible? Only specific performance is permissible?”

A larger Bench or not

Seeking clarity on Soren’s stand, the CJI asked Ramachandran, “How do you stand in relation to Narasimha Rao…?”

The CJI wanted to know whether Ramachandran wanted the court to allow Narasimha Rao’s dictum, accept his appeal and set aside the high court’s Order.

Ramachandran confirmed that this is the relief that his client is seeking, but opposed the reference to a Bench of seven judges. He argued that Soren’s criminal appeal can be appropriately heard by a three-judge Bench.

The Attorney General for India R. Venkataramani seconded Ramachandran’s stand in stating that a reference to a larger Bench was not required.

Venkataramani contended that the question of reconsidering the judgment in Narasimha Rao does not arise in the facts of Soren’s case.

The amicus curae in the case, senior advocate P. S. Patwalia, argued that the judgement in Narasimha Rao needs reconsideration.

Patwalia added that in all other jurisdictions the view is that a crime has to be considered under the ordinary criminal law.

The purpose of immunity is to protect what happens in the Parliament. It is not to make a super-citizen, Patwalia contended.

Senior advocate Gopal Sankaranarayanan, appearing for an intervenor, agreed with Patwalia’s stand.

The object of immunity from prosecution

The object of constitutional immunity from prosecution is not to create “super citizens, immune from criminal responsibility”, the Supreme Court had stated in Narasimha Rao.

In observing so, the court took the terminology used by the United Kingdom’s Royal Commission on Standards of Conduct in Public Life’s report from 1976.

Elaborating on the purpose of Articles 105(2) and 194(2), the reference Order from yesterday notes that prima facie it is not to render immunity from the launch of criminal proceedings for a violation of criminal law which may arise independently of the exercise of the rights and duties as an MP.

The court observed that the purpose of this immunity is to ensure that MPs and MLAs are able to discharge their duties in an atmosphere of freedom, without fear of the consequences which may follow for the manner in which they speak or exercise their right to vote on the floor of the House.”

The object clearly is not to set apart the members of the legislature as persons who wield higher privileges in terms of immunity from the application of the general criminal law of the land,” the court averred.

The Leaflet