New Delhi: The recent episode of a BJP member of the Lok Sabha, Ramesh Bidhuri, using slurs against another member, Danish Ali, during a debate in the House came under scrutiny before the seven-judge bench of the Supreme Court on Thursday (October 5).
The question under consideration was whether Bidhuri’s conduct – which clearly would have constituted hate speech outside the House – could come under the cloak of parliamentary immunity.
Raju Ramachandran, the senior counsel who argued before the bench, agreed that however despicable Bidhuri’s speech may have been, it enjoys immunity from prosecution for criminality because he made it in the course of proceedings in parliament.
However, Ramachandran added a caveat, saying that if there is evidence of a conspiracy before the debate to make the hate speech, then that conspiracy would not enjoy immunity.
In P.V. Narasimha Rao vs State, a five-judge bench in 1998 held in a 3:2 majority that legislators are immune to criminal prosecution for any speech or vote in the House, by virtue of the privilege conferred by Articles 105(2) and 194(2) of the constitution.
The majority judges, led by Justice S.P. Bharucha, had held that the privilege could only be claimed if the legislator, who receives a bribe promising to vote or speak in the House to satisfy the bribe-giver, performs that promise.
The two dissenting judges, Justices S.C. Agarwal and A.S. Anand, however, took the view that the immunity granted under these two Articles would not extend to cases where bribery for making a speech or voting in a particular manner in the House is alleged.
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The Supreme Court’s seven-judge bench concluded its two-day hearing on the correctness of the majority view in this case on Thursday, October 5, and reserved its judgment. The bench comprised Chief Justice of India D.Y. Chandrachud and Justices A.S. Bopanna, M.M. Sundresh, P.S. Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Misra.
The correctness of the decision in P.V. Narasimha Rao was referred for reconsideration by a seven-judge bench in Sita Soren v Union of India.
Soren, who belongs to the Jharkhand Mukti Morcha, was accused of accepting a bribe to vote for an independent candidate in the Rajya Sabha elections. She claimed immunity under Article 194(2) of the constitution, as per the Supreme Court’s majority verdict in P.V. Narasimha Rao.
Soren failed to perform the promise made to the bribe-giver and voted for her party’s candidate in the Rajya Sabha elections, thereby not completing the offence of criminality. As the Jharkhand high court dismissed her plea, she filed her appeal in the Supreme Court.
The high court dismissed her plea on the grounds that Soren’s alleged act of receiving the bribe had no nexus with the act of casting her vote in the assembly, as she did not vote for the bribe-giver.
In P.V. Narasimha Rao, the majority judges had held that if one casts a vote pursuant to the alleged conspiracy and agreement, then the latter can be said to have had a nexus with the vote.
In the P.V. Narasimha Rao case, one of the accused, Ajit Singh, who was party to the conspiracy to receive a bribe to vote against the no-confidence motion against the then-Rao government, did not cast his vote and therefore was found ineligible for immunity.
The majority judges in that case reasoned that our sense of indignation (over bribery) should not lead us to construe the constitution as narrowing or impairing the guarantee to effective parliamentary participation and debate.
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The dissenting judges, however, recognised that while the object and purpose of Article 105(2) of the constitution is to enable members of parliament to speak freely or to cast their votes without fear of consequences, an interpretation that places members of parliament above the law would be repugnant to the healthy functioning of parliamentary democracy.
According to the dissenting judges, immunity would not extend to anything that occurred before a speech or a vote. This, they concluded, would be the result if one were to interpret the words “in respect of” in Article 105(2) as “arising out of”, so that the Article refers specifically to the consequences of a speech or vote given in parliament.
Article 105(2) says that:
No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee 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. [Emphasis added]
They also said this interpretation would prevent an anomaly – the majority judges’ broad interpretation of “in respect of” grants immunity to votes or speeches given due to bribery, but not to silence or abstention from voting as a result of bribery (as the wording in the Article does not mention abstention).
However, the “arising out of” interpretation grants immunity in neither situation (voting or abstaining after accepting a bribe), as the act of accepting a bribe happens before any speech or vote in parliament, and not as a consequence of it.
The dissenting judges held that the offence of bribery is complete against the receiver of a bribe, if they take or agree to take money for a promise to act in a certain way.
The offence would be 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.
Narasimha Rao. Photo: PTI
Two-day hearing
Appearing for Soren, Ramachandran argued against overruling P.V. Narasimha Rao, as in his view, it had stood the test of time.
Submitting that immunities are a distinct pillar in the constitutional edifice and as privileges, they ensure that members are not oppressed by the executive, Ramachandran argued that it is not for the court to find perfect solutions for all moral dilemmas, which are best left in the hands of parliament.
The attorney general R. Venkataramani distinguished between a Rajya Sabha election and a legislative vote and argued that immunity would not be attracted in the former. Ramachandran, however, disagreed with this view.
On the broader question, however, Venkataramani submitted that privileges could not be misused to dilute trust in representatives. He too doubted the correctness of the majority verdict in P.V. Narasimha Rao, by suggesting that the “nexus” theory disregarded any antecedent criminal conduct occurring prior to the speech or the vote in the House. But he requested the bench to moderate the dissenting view in the judgment.
The solicitor general Tushar Mehta also contended against the majority view in P.V. Narasimha Rao because it made the performance of a promise (vote or speech in the House in return for a bribe) contingent for granting immunity from criminal prosecution.
According to him, Section 7 of the Prevention of Corruption Act made the performance of a promise irrelevant to its application, and this was missed by the majority judges.
Senior advocate D.S. Patwalia, who argued as amicus curiae, defended the dissenting view in P.V. Narasimha Rao.
Arguing on behalf of an intervenor, senior advocate Gopal Sankaranarayanan also doubted the precedent value of P.V. Narasimha Rao. He disagreed with the majority view in that judgment that immunity should be broadly construed.
According to him, the law could not have intended to grant immunity to someone who would be guilty on the streets but not in parliament for the same offence. He suggested that criminality would apply to an MP’s act of receiving a bribe, irrespective of whether the promised act was performed by them before or after receiving the bribe.
Senior advocate Vijay Hansaria disagreed with the view of the majority judges in P.V. Narasimha Rao granting immunity to all sorts of offences because of the broad terms with which they construed the words “in respect of” in Articles 105(2) and 194(2), to justify a nexus with the vote or speech in parliament or an assembly.
Instead, he suggested that the words “in respect of” should be construed as being applicable only to instances essential to the legislature. Any criminal act outside the House, committed by the members, would fall outside the cloak of immunity, irrespective of its nexus with the vote or speech in the legislature, he suggested.
The majority view in the P.V. Narasimha Rao judgment also came under criticism from the counsel for ignoring voters’ trust in their representatives, and for supporting the contention that parliamentarians deserved a higher pedestal.
While referring to the correctness of the majority decision to a seven-judge bench, the Supreme Court noted that it has serious ramifications for the polity and the preservation of probity in public life.
