In Sita Soren v. Union of India, a seven-judge Bench of the Supreme Court has only stated the obvious. The court said there is no immunity for a legislator who accepts bribe for voting in Parliament. It overturned the earlier five-judge Bench ruling to the contrary in P V Narasimha Rao v. State (1998), popularly known as the 'JMM Bribery case'. The court also said the offence is complete the moment illegal gratification is accepted.
The judgment in Sita Soren is a self-correction by the court, something that was long overdue. It said, "The judgment in P V Narasimha Rao, which grants immunity from prosecution to a member of a legislature who has allegedly engaged in bribery for casting a vote or speaking, has wide ramifications in public life and parliamentary democracy. There is a grave danger of this court allowing the error to be perpetuated if the decision were not reconsidered."
The Older Split Verdict
Let us see the relevant constitutional provisions. Article 105 deals with the powers and privileges pertaining to Parliament and its members, and Article 194 deals with those of the state legislature and its members. They state that 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 legislative body)".
P V Narasimha Rao (1998) was a 3:2 verdict. The majority on the Bench had committed the folly of reading the constitutional provisions somewhat literally. Justice Learned Hand had famously said that there is no surer way to misread a document than to read it literally. That observation applies to the reading of the Constitution as well. More importantly, the Narasimha Rao judgment was conceptually wrong when it said that a member of Parliament who obtains a bribe to vote in Parliament in a particular way could still claim immunity from prosecution.
Article 105 is thus literally read, understood, and invoked. The court, in the 1998 verdict, said that a vote is an expression, which, nevertheless, is correct. In People's Union of Civil Liberties v. Union of India (2003), the Supreme Court said that the right to make a choice by means of a ballot is part of the freedom of expression under Article 19(1)(a) of the Constitution. The question, however, was not of voting per se. It was about the myth of constitutional protection claimed for an act of sheer corruption by the lawmaker. The 1998 verdict was carried away by this myth, while the present ruling exposed it.
Interpreting Privileges And Their Victorian Roots
Parliamentary privileges have a Victorian root. The British Parliament required the power to punish for contempt as it had the characteristics of a court as well. Its members also needed to speak freely and fearlessly without being intimidated by the Palace. In India, too, it might be understandable to protect a member's speech on the floor of the legislative body, provided it does not amount to an offence. Yet, the position here is essentially different from that in England.
It is erroneous to think that constitutional interpretation is only a technical exercise based on the conventional tools of construction. It is an ethical process too. As such, it requires to be governed by the ethos of constitutional morality. In State (NCT of Delhi) v. Union of India (2018), the Supreme Court quoted Justice Hand: "The meaning of a sentence may be more than that of the separate words, as a melody is more than the words." The seven-judge Bench interpreted the articles and rightly said that the purpose of the constitutional provision is to protect the speech and not to protect an act that is otherwise an offence.
The Importance Of Dissent
Significantly, the verdict endorses the dissenting minority views rendered in the past on the subject. The Chief Justice of the US Supreme Court, Charles Evans Hughes, wrote that a dissent could be "an appeal to the brooding spirit of law, to the intelligence of a future day".
The future is here. The future is reflected in Sita Soren. The master dissenter, Justice Subba Rao, in M S M Sharma v. Shree Krishna Sinha (1960), disagreed with the majority on the Bench and said that the legislature cannot torpedo the fundamental rights of citizens in the guise of privilege. The minority view in Narasimha Rao too has placed the dissent in perspective. It said that immunity for a Parliament member from criminal prosecution at the teeth of the allegation of voting based on bribery would "not only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law". But the Supreme Court is not infallible.
SC Sets A Useful Precedent
The present judgment will set a useful precedent not only in bribery cases but in cases involving other offences too. To illustrate, on a proper extension of the logic of the present verdict, a lawmaker who commits a hate crime can no longer claim immunity. To take an example, Section 153 (A) of the Indian Penal Code punishes an act of "promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.". Yet, many of our legislators could utter many things on the floor of the House with impunity, even though such statements could attract penal provision if uttered outside the legislature or by an ordinary citizen.
By applying the ratio of the present judgment, such a member can no longer claim immunity if what he said amounted to a hate crime, which could be different from hate speech simplicitor. Similar would be the position with respect to other offences. The current larger Bench has rightly referred to an earlier judgment written by Justice Chandrachud (as he then was), where he said that "privileges and immunities are not gateways to claim exemptions from the general law of the land". That was a case against a few members of the Kerala Legislative Assembly who allegedly climbed over the Speaker's dais and caused damage to property in the assembly hall.
An Extended Discourse On Power, Immunity?
The judgment can also ignite a discourse on the desirability of retaining the privilege clauses in the Constitution. The Articles concerned, 105 and 194, not only deal with immunity for members but also with the power of the legislature to punish for contempt. In State of Karnataka v. Union of India (1977), it was held that a house of Parliament or state legislature exercises a judicial or quasi-judicial function when it issues notice to a citizen alleging breach of privilege. Often, the outspoken public as well as the media have been proceeded against using this power. Attendance of such dissenters was insisted on several occasions, which did have a chilling effect on freedom of expression for citizens in general and the media.
There has been a good deal of judicial introspection about such power and privileges in India. It is now widely acknowledged that even in England, the judicial trend is against the idea of privilege. The importance of applying the "necessity test" was also emphasised by the top court earlier, which finds a reiteration in the present verdict, with a better sense of clarity.
People's March Over Political Feudalism
Thus, the seven judges' ruling has the potential to enhance the level of freedom and probity in the country's personal and public life. It has a great equalising impact which places the citizens and their representatives on equal footing in the realm of penal laws. In Re S.Mulgaokar (1978), Justice Krishna Iyer said that "the court is not an inert abstraction; it is people in judicial power".
The present verdict reflects people's march over political feudalism under the guise of privileges. It is a triumph of Article 14 of the Constitution (stating equality before the law and equal protection by the laws) over the medieval notion of privilege, the legitimacy of which in a modern democracy is very much questionable.
(Kaleeswaram Raj is a lawyer at the Supreme Court of India)
Disclaimer: These are the personal opinions of the author.
