Guest Post: The Democracy Branch – Reimagining the Role of the Data Protection Authority

[This is a guest post by Nikhil Pratap.]

In Justice K.S.Puttaswamy (Retd) v. Union of India (2017), the Supreme Court instructed the Justice Srikrishna Committee to formulate a comprehensive legislation for personal data protection. A law was deemed necessary in the context of the surveillance and privacy threats to individuals, primarily from the executive action. The main purpose of the law would be to incorporate data protection principles and also ensure accountability of government use of data.

The efforts on instructions of the Supreme Court eventually culminated in The Personal Data Protection Bill, 2019 (“PDP Bill”) which sets out data protection principles for collection and processing of personal data, both by government and private parties. It envisages a Data Protection Authority (“DPA”) having wide powers to carry out policy setting, monitoring enforcement, investigation, research, awareness and grievance redressal functions. The powers and the structure of the DPA in the PDP Bill are largely inspired from other sectoral regulatory bodies – such as SEBI or TRAI, which carry out core economic functions of the executive and are under its direct supervision and control.

It is the author’s argument that the proposed DPA in its current form greatly deviates from its originally envisaged primary function i.e. to ensure accountability of the executive (both Central Government and State Governments and its various arms) – while it collects and processes personal data of its citizens. Given the intent and context of the PDP Bill, setting up the DPA as a sectoral economic regulator under the control of the Central Government, amounts to defeating its mandate. To ensure that the Bill effectively meets its purpose, the DPA should be reimagined as a ‘Fourth Branch’ Institution or a ‘Democracy Branch’ Institution.

Fourth Branch Institutions

Constitutional theory traditionally divides the State into three branches – the Legislature, the Executive and the Judiciary. Under this traditional conception of State, institutional accountability of executive action lies with the other two branches of the government – namely, legislature and the judiciary. However, due to the design constraints of parliamentary democracy and collective responsibility, legislative accountability tends to get weakened as the executive usually commands the support of a parliamentary majority. (See recent decision of the Parliamentary Committee on review of PM Cares). This means that the judiciary is effectively the only institution responsible for protection of Constitutional checks and balances.

In such a context, the concept of a ‘Fourth Branch’ of the State gains immense significance and potential. There is growing literature which classifies institutions protecting the core ideals of democracy, as the ‘Fourth Branch’ or the ‘Democracy Branch’. (See Professor Bruce Ackerman and Professor Tarunabh Khaitan). The core democratic ideals which the Fourth Branch ought to protect depends on the conception of the democracy embraced by the Constitution. A ‘thinly’ defined democracy would limit these core ideals to fair processes such as free and transparent elections, oversight, impartiality and civil and political liberties whereas a ‘thickly’ defined democracy would also require protection of other constitutional values such as socio-economic rights and distribution of financial resources. The protection offered by the fourth branch institutions would thus vary depending on the constitutional values. However, in either case, these institutions are independent from the other branches of the State and provide for an additional layer of institutional accountability- apart from the judiciary.

Good examples of fourth branch institutions are the ‘Chapter IX’ institutions in the South African Constitution, which are called ‘State Institutions Supporting Constitutional Democracy’. These include institutions such as the South African Human Rights Commission, Electoral Commission, the Auditor General and the Commission for Gender Equality. Similarly in India, institutions such as the Finance Commission, Election Commission, the CAG, Lokpal, Information Commission, National Human Rights Commission may be considered as examples of the fourth branch even though they are not explicitly enumerated as such. The distinctive characteristic of the ‘Fourth Branch’ institution is that they are independent from the direct influence and control of the Executive.

While some of these fourth branch institution are constitutional bodies, they may be created through a statutory enactment as well. Gautam Bhatia argues that statutory bodies that provide a framework towards implementation of core fundamental rights or a democratic ideal are elevated to the status ‘constitutional statutes’. He draws a functional equivalence between constitutional bodies (such as the Election Commission) and the institutions created by constitutional statutes (such as Information Commission, CBI, CVC)- as both of them serve core democratic functions and ensure accountability- and concludes that both types of bodies are fourth branch institutions. As such they deserve equal protection of their independence from the executive, irrespective of their structure or manner of enactment. In this context, he argues that the recent Right to Information (Amendment) Act, 2019, which removed the fixed tenure and salary of the Information Commissioners is unconstitutional because it dilutes their constitutionally protected independence.

To ensure independence, members of the fourth branch institutions are usually not appointees of the executive but are appointed by a committee often having bipartisan legislative representation and in some cases representatives from the judiciary. Examples of appointment through such selection committees include the Information Commissioners, Central Vigilance Commissioners or the members of the National Human Rights Commission. Many fourth branch institutions have fixed terms and salary for their members. For example, the Comptroller and Auditor General of India has a fixed term of 6 years and can only be removed from office in the same manner and on the same grounds as that of a judge of the Supreme Court and his/her salary can be altered only by a law by the Parliament. Similarly, members of the National Human Rights Commission can be removed on ground of proved misbehaviour or incapacity as prescribed in law.


The question which then arises for consideration is why must the DPA be considered a fourth branch institution instead of a mere sectoral regulator such as TRAI, SEBI or CERC. To answer this question, we must first understand that in a welfare state such as India, the executive branch continues to play a dominant role in individual lives, and they process a wide range of personal data for functions such as healthcare, subsidies, census, surveillance and targeted governance. Intelligence and law enforcement agencies also collect and process swathes of personal data of individuals. Given the width and scale of executive action related to personal data, accountability of executive actions becomes necessary. This sentiment was captured in Puttaswamy, where Chandrachud J. observed :

180. (…) In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients (…) Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns.


The potential dangers of privacy and surveillance posed by the executive has already been made evident in the constitutional challenge to the AADHAR scheme, where the Petitioners exhaustively presented the privacy, surveillance and security dangers to unchecked data processing by the government.

Further, the right to privacy has already been recognized as a civil political right which requires heightened protection from the executive abuse, for they are inextricably linked to a free exercise of other democratic rights such as a right to vote or the right to freedom of movement and association. Thus, protection of right to privacy as a fundamental right is not merely an end in itself but also instrumental in protecting the minimum democratic core of our Constitution. It is for safeguarding this fundamental right of privacy that the Supreme Court instructed the Committee chaired by Justice B N Srikrishna to draft an appropriate legislation, knowing fully well that an unchecked collection and use of personal data can lead to executive aggrandizement and adversely affect democracy.

The mandate of the PDP Bill was to constitute an independent body which would facilitate democratic and institutional accountability of the executive but in stark contrast, the DPA has now been modelled as a sectoral regulator; and much like any other sectoral regulator, the central government has retained executive control and supervision over the DPA. For example, the Selection Committee which appoints the members of the DPA comprises entirely of members from the executive i.e. secretaries from different departments of the Central Government. Their salaries and allowances are to be prescribed by the Central Government. The Central Government has also been empowered under the Act to remove any member of the DPA on the grounds enumerated in the PDP Bill. Emulating economic regulators, the PDP Bill has also vested its adjudicatory function in adjudicatory officers. The manner and term of appointment of these officers shall be decided by the Central Government.

Such pervasive executive control built into sectoral regulators is justified as they are bodies which set out, regulate and monitor economic policy. Since economic policy is a core function of the executive, it is only appropriate that the government has the functional autonomy and powers related to it. However, the same principal cannot apply to an accountability and democracy body such as DPA. Given the key role of DPA in protecting a core democratic ideal of the Constitution (and that too largely against the Executive itself), it neatly fits into the category of a fourth branch institution and not a sectoral regulator. It is therefore necessary that the DPA is reimagined as a robust and independent part of the ‘Fourth Branch’ lest the right to privacy becomes illusory over time.

Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

[This is a guest post by Adv. Manoj Harit.]

In the life of a noisy democracy like India, issues fanning large-scale outrage are commonplace. Easy and widespread access to social media accentuates the outrage. Frenetic, sarcastic, or fervent calls to the Hon’ble Supreme Court of India follow as matter of course. As a consequence, public-spirited persons rush to the highest Court, invoking Article 32 of the Constitution.

But while Article 32 grants the right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by Part III of the Constitution, Article 226 goes a step further, insofar as it empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. [Emphasis mine]

Thus, it is manifest that the power conferred by virtue of Article 226 is to enforce the rule of law and to ensure that the State and other statutory authorities act in accordance with law. The words ‘for any other purpose’ are for a specific reason. It is an attempt by the framers to anticipate unforeseen obstacles, if any, that may hinder or curtail the power of High Courts to do justice, review executive actions / decisions, and safeguard the primacy of Rule of Law.

The raison d’être of Article 226 has been particularly evident during the pandemic, at High Courts across the country. Article 226 and judicious exercise of the power conferred by it upon the High Courts has played a vital role in alleviating the sufferings of the citizens, especially the poor and marginalized. The High Court of Bombay has been an important actor, and has handed down a series of orders that are both legally well-founded, and within the spirit of the Constitution.

During the pandemic and the unending lockdowns, the High Court of Bombay was petitioned to intervene when adivasis were denied food rations, when non-Covid patients were facing neglect and apathy, against onerous conditions that were put upon the migrant workers for return travel to their home States, when there was denial of rations to people who did not hold ration cards, against unlawful and wavering directives of the Municipal Corporation with respect to burials of cadavers of suspected / confirmed Covid-19 infected individuals, against non-implementation of RBI guidelines on interest / repayment moratoriums by the Banks, against Air India not keeping the middle seat vacant and thereby risking lives of flyers, on multiple issues on spread of Covid-19 amongst the various correctional homes (admirably, the CJ Bench did not use the words jails or prisons), against imposition of Orders u/s 144 of CrPC by the police authorities, on welfare measures for pet animals, on Covid-19 testing protocols for frontline health workers, on non-availability of crop loans to the farmers & germination problems in soya bean seeds – to mention a few examples.

More than 150 orders have been passed by the High Court of Bombay, exercising powers under Article 226 of the Constitution during the pandemic. A closer look at the orders reveal the working of a Constitutional Court, compassionate and public spirited advocacy, and importantly, a fair and reasoned response from the Attorney-General, representing the State of Maharashtra. The Ld. Attorney General and Senior Advocates representing the Municipal Corporation of Greater Mumbai did not treat the petitions as ‘adversarial’ litigations, and proffered due deference to the suggestions made by the Petitioners (probably due to the disposition of the Bench). Some examples follow:

Ration and Food Supplies

In PIL-LD-VC-14 of 2020, when apprised of lack of ration and food supplies to tribal & adivasi people residing in Thane, Palghar & Nashik Districts of Maharashtra – where the people in remote areas were denied benefits under the Antyodaya scheme for not possessing ration cards, and, the applications for getting ration cards were not being processed due to lockdown – the High Court issued directions to District Supply Officers of Thane & Palghar Districts (both the Districts have a significant population of the Adivasis & the marginalized) to commence work on processing the ration card applications immediately, and further, directed the State to ensure that lack of ration cards did not deprive the citizens of food rations. The petition was kept pending with further directions to the State to submit, on Affidavit, the progress made, thereby keeping the State on its toes. It is the power of High Court under Article 226 that keeps a leash on the executive. And by keeping the petitions pending, the Executive is compelled to take appropriate actions in order to face the Court on the scheduled date. This acts as a catalyst in resolving the issues faced by the citizens. The files move with seemingly miraculous speed in the bureaucracy when the Court date is dangling like the “Sword of Damocles”.


In PIL-CJ-LD-VC-11-2020, an important issue was raised: that “the migrant workers who have submitted applications for leaving the State availing Shramik Special trains and buses during the continuance of the Lockdown, have been left in the dark about the status of their applications and that till such time they can board the trains/buses to leave for their native places, they have been made to live in cramped and unhygienic shelters, without being provided with food and other essentials.”

The Additional Solicitor General representing the Union of India informed the Hon’ble Court that the Apex Court was seized of the matter and had already passed an order dated May 28, 2020 on the issue of migrant laborers. The High Court of Bombay, with due deference to the fact that the issue was actually being dealt by the Apex Court recorded that “at this stage, neither are we empowered nor do we wish to make any order contrary to the spirit of the order of the Supreme Court.” But the power of Article 226 and the spirit of Constitution compelled the High Court to further direct the State Government:

… however, having regard to the peculiar local conditions, we consider it fit and proper to call upon the State to file a report indicating therein how the plight of the migrant workers, who have been assembling at the railway stations/bus stands in Mumbai and places around it, are being addressed. In fact, we have come across photographs in newspapers showing congregation of migrant workers not only on railway platforms but also on the streets adjoining the railway stations. Such congregation, if allowed, would run counter to the object, for which the Lockdown has been imposed. The report shall, inter alia, indicate the whole procedure that a migrant worker is required to follow in order to be eligible for leaving this State, the likely time within which he could board a train/bus, the nature of shelter he is provided with during the waiting period as well as provisions made available to him for his sustenance.


The issue of the burials of cadaver of Covid-19 infected individuals brought out the pragmatic approach of the High Court. [LD-VC-46 OF 2020] In a multi-pronged and multifaceted litigation, the High Court was called upon to review executive action/s, balance the fundamental right to life of people with radically differing contentions; and, also with the right to dignity in death.

The facts:

The Municipal Commissioner, Mumbai had come out with a Circular dated March 30, 2020 under Regulation 10 of the Maharashtra COVID-19 Regulations 2020, issued under Sections 2, 3 & 4 of the Epidemic Diseases Act, 1897. It mandated cremation of the cadaver, irrespective of religion. For those wanting a burial, an option of taking the cadaver out of the city limits of Mumbai was provided. It created instant furor & outrage. By evening, an amended Circular was issued, permitting burials in Mumbai, provided that the ‘burial grounds are large enough so as not to create possibility of spread of virus in the neighbouring area’. Both the Circulars were challenged by rival petitioners – those opposing burial permission in city burial grounds and those supporting it.

On April 9, 2020 another Circular was issued in continuation of the aforesaid Circulars. Through this Circular, names and mobile numbers of the persons to contact in case of requirement of burial of a cadaver of a Muslim, and also, the list of the burial grounds were provided.

The aforesaid Circular dated April 9, 2020 was also challenged by some Petitioners claiming that the list of kabrasthans appended to the circular dated April 9, 2020 included 3 (three) kabrasthans, which are close to the Petitioners’ residences. It was contended that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences is likely to endanger their lives as well as others residing nearby and accordingly, they prayed that the Respondents (State of Maharashtra and the Corporation) might be restrained from allowing burial of the cadaver of any COVID-19 infected individual in the relevant burial grounds.

Many intervention applications were also filed. The Court allowed those applications and heard the interveners too.

The Issues Before the Court

Did the Municipal Commissioner, MCGM have an authority to issue the amended circular and its legality and propriety?;

Which of the 3 Circulars issued by the Municipal Commissioner, MCGM conformed with the guidelines issued on the subject by WHO and Government of India, and, hence, sustainable?;

Was the right to life of the Petitioners as guaranteed under Article 21 was adversely affected due to the burial of cadavers of COVID-19 infected persons in the burial grounds surrounded by dense population, including the residences of the Petitioners?;

The Court’s Analysis:

On Issue (a) & (b) : As the Petitioners, Interveners and the State were making differing contentions on the issue, the Court ‘analyzed’ the WHO and Government of India Guidelines on the question of management of cadavers of suspected/confirmed COVID-19 infected individuals. After a detailed analysis, the Court concluded (paragraph 24):

Analysing the said recommendations, it becomes clear that even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated. Such recommendations also throw light on the procedure to be observed at the time of burial of the deceased. Those who handle the cadaver have to adopt precautionary measures. Those are intended to protect them from being infected. A detailed procedure to be observed at the time of burial is also laid down. Observance of such detailed procedure at the time of burial is, in our view, sufficient safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the kabrasthan/cemetry for having a last look at the deceased and to bid him a final good-bye”.

In paragraph 25: the Court asked itself a question:

“If indeed risk from a dead body would endanger the lives of human beings, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers to combat the virus, would be much greater. Are such staff shying away from treating COVID-19 patients? The answer must be an emphatic ‘no’.

In paragraph 26, the Court made up its mind based upon the material before it:

… the order of the Municipal Commissioner rather than being founded on scientific data or material appears to have been dictated by considerations which are extraneous. The order refers to a community leader and to what was brought by him to the notice of the incumbent Municipal Commissioner. We have no hesitation in our mind that such incumbent, instead of referring to what the community leader had brought to his notice, would have been well advised to proceed for a scientific management of disposal of cadavers of suspected/confirmed COVID-19 infected individuals in accordance with the recommendations of the WHO and the GoI guidelines.

Thereafter, in Paragraph 27 & 28 the Court declared the earlier Circular dated March 30, 2020 directing that burial should not be allowed for containing spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium irrespective of their religion, to be unsustainable. The Court further held that though the exercise of powers under Regulation 10  of the Maharashtra COVID-19 Regulations 2020 did not appear to be legal, the Municipal Commissioner could have resorted to it, provided such a measure had the sanction of the existing protocols for management of COVID-19, or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.

In view of the aforesaid, in paragraph 27, the Court observed that “we, thus, hold the action of the Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.” Noticeably, in the very next paragraph, the Court demonstrated that it is alive to the precedence of ‘deference to the executive action in matters of policy’. The Court observed that “the Municipal Commissioner, being a creature of the 1888 Act, is bound by its terms and a decision has since been taken which conforms to such provisions read with the GoI guidelines. It is indeed a matter of policy whether to close down a place for disposal of the dead. Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.”

However, in this case, intervention was justified, because:

The amended circular was drastic in its operation but without any scientific basis for it to rest on and since it did not have statutory sanction, the circular dated April 9, 2020 notifying 20 (twenty) out of several kabrasthans/ cemeteries for burials was a timely move to restore sanity. To err is human but taking lessons from mistakes and rectifying the situation was the call of the moment. Proper management of disposal of dead bodies ought to have been worked out consistent with the recommendations of the WHO and the GoI guidelines as well as the sentiments of the members of the communities for whom burial of a dead member of such community is an integral part of their religious belief and faith. Though such management was initially lacking, but ultimately better sense must have prevailed upon the incumbent Municipal Commissioner who left no stone unturned to remedy the situation.

As regards to the legality of the amended Circular dated April 9, 2020, the Court held it to be in continuation of the earlier Circular, and, not a review thereof. Therefore, it did not suffer from any legal infirmity.

On issue ( c ) : the Court rejected the contention of the Petitioners that their right to life under Article 21 was under threat due to the burial of cadavers of COVID-19 infected persons in the Kabristans in the vicinity of their residences, for being misconceived and misdirected and without a scientific base or foundation.

It is thereafter that the Court invoked preambular promise of fraternity by observing that:

“We have found the petitioners to be rather insensitive to others’ feelings. The founding fathers of the Constitution felt that the people of India would strive to secure to all its citizens FRATERNITY, assuring the dignity of an individual. That is the preambular promise. In Parmanand Katara (Pt) vs. Union of India & Ors., reported in (1995) 3 SCC 248, it has been held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. Should the extant guidelines for disposal of the cadaver of an individual infected by COVID-19 be adhered to and the cadaver properly handled and placed in special covers to contain any kind of spread, we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites”. [Emphasis mine]


It is, even if not framed so, a balancing of the Part III rights of the living, with that of the dead, although, the dead were unidentified, and not before the Court. That for me, is Article 226 in all its importance.

Guest Post: Reconsidering P. V. Narasimha Rao v. State – Bribery, parliamentary votes, and parliamentary immunity

[This is a guest post by Karan Kamath.]


In 2014, the moot question in Sita Soren v. Union of India before the Jharkhand High Court was whether a legislator who accepts a bribe to vote in a certain manner and does not vote in that manner, enjoys parliamentary immunity from prosecution? The legislator in question allegedly accepted a bribe for one candidate to the Rajya Sabha, but eventually voted for some other candidate. The legislator relied on the Supreme Court’s decision in P. V. Narasimha Rao v. State (“Narasimha Rao”), wherein several parliamentarians were held immune from prosecution for bribery, as the alleged kickbacks were ‘in respect of’ a parliamentary vote, which are guarded by parliamentary immunity. However, in case of one of the accused, the Court denied immunity as he had not cast a vote, and made himself ineligible for parliamentary immunity, by delinking the relationship between his vote and alleged acceptance of bribe. The legislator contended that as long as there was a vote cast, the immunity in Narasimha Rao would be applicable.

The Jharkhand High Court distinguished Narasimha Rao from the facts at hand, as it involved two circumstances: firstly, bribery ‘in respect of’ a vote; and secondly, bribe and no corresponding vote. In Sita Soren, the legislator had allegedly accepted the bribe, but cast the ballot for a different candidate. In the High Court’s opinion, this was similar to the latter circumstance in Narasimha Rao: absence of any relationship between the vote and the bribe would make the legislator disentitled from invoking parliamentary immunity.

The High Court judgment was soon challenged before the Supreme Court in a special leave petition, and placed before a three-judge bench. On March 7, 2019, this bench referred these questions of ‘substantial public importance’ with ‘wide ramifications’ to a five-judge Constitutional bench, congruent in strength to Narasimha Rao. As of now, the issues remain unanswered before this Constitutional bench.

P. V. Narasimha Rao v. State: Parliamentary immunity from bribery charges?

Article 105(2) of the Constitution reads:

“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…”

A mutatis mutandis provision for State Legislatures is Article 194(2). As the provisions are identical in wording, this article only refers to Article 105(2), but all such references are equally applicable to 194(2).

The provisions came under scrutiny in Tej Kiran Jain v. N. Sanjiva Reddy (“Tej Kiran”), wherein the Supreme Court laid down that no defamation proceedings could arise from speeches made by parliamentarians. It was held that the immunity under Article 105(2) is applicable to ‘anything’ said or ‘any’ vote, and therefore entitled to expansive interpretation with the sole limitation that such speech or vote be in the course of parliamentary business. Once the speech or the vote was established as parliamentary business, no liability could arise thereon.

This interpretation was expanded in the context of bribes for votes in Narasimha Rao. The Court reasoned that the term ‘in respect of’ occurring in the Article accorded parliamentary immunity against any liabilities “that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament.

Once such a functional connection was established, immunity prevailed. For those accused who voted, the exemption existed. However, for the parliamentarian who failed to vote, the alleged bribe was not ‘in respect of’ any vote or speech, disqualifying him from claiming parliamentary immunity.

The correctness of Narasimha Rao has been doubted; however, in 2007, a five-judge bench in Raja Ram Pal v. Speaker of the Lok Sabha reiterated the decision in Narasimha Rao, while holding that such immunity was restricted only to bribery ‘in relation to’ any vote, not other acts such as raising questions or allocating local area development funds.

Nonetheless, the dictum in Narasimha Rao remains binding authority on parliamentary immunity vis-à-vis bribery charges. Even if the five-judge bench seeks reconsideration of its ratio in Sita Soren, any law declared by a prior bench is binding on any subsequent bench of co-equal strength. According to the ruling in Joseph Shine v. Union of India, a latter bench of coordinate strength cannot overrule a former. Therefore, the bench in Sita Soren can, apart from answering the sole question raised before it, refer the judgment in Narasimha Rao to a higher bench for reconsideration by questioning its correctness.

Public servants and official duties

Similar to parliamentary immunity enjoyed by legislators, executive public servants are granted immunity from criminal liability for acts done during performance of official duties. The interpretative principle in such cases was elucidated by the Supreme Court in B. Saha v. M. S. Kochar (“Saha”): immunities cannot be interpreted so broadly that they become a carte blanche for any and every action of officials, nor can they be interpreted so narrowly that the enabling provision becomes ‘sterile’. The Court proposed a bespoke approach that requires every factual scenario to be considered separately from others.

The act of taking a bribe has been categorically held outside any such immunity. While determining the extent to which public servants performing official acts are exempt from criminal liability, the Federal Court in Hori Ram Singh v. R held that acts like bribery, which are not possible without holding some public office, cannot be considered as official acts, due to their very nature. This was subsequently confirmed by the Privy Council in Gill v. R.

After enactment of the Constitution, the Supreme Court reiterated the same in K. Satwant Singh v. State of Punjab (“Satwant Singh”), observing that bribery by its “very nature cannot be regarded as having been committed by public servants, while acting or purporting to act in the discharge of their official duty.” Recently, in Om Prakash v. State of Jharkhand, the Court reaffirmed Satwant Singh noting that immunity from prosecution was ‘not merely a cloak’ for committing objectionable acts.

Reading this case law with the interpretative principle in Saha, doubts about the rationale of Narasimha Rao can be substantiated. The ‘vote’ in Article 105(2) is bona fide vote to be cast without any apprehension of liability to arise, assuring freedom of thought for a legislator. A ballot casted in exchange for bribery can never be said to be included in the language. However, this argument would require another consideration: the object of parliamentary immunity and whether its original intent was to protect any and all acts of legislators, contrary to the middle-of-the-road approach like Saha.

Objective of parliamentary immunity

The purpose of Article 105(2) as iterated by Tej Kiran is to ensure that people’s representatives enjoy complete freedom and that they perform their functions without any apprehension of legal liability. The minority judgment in Narasimha Rao opined that this objective was not furthered by granting impunity to parliamentarians taking bribes for votes. This view is more in line with the legal developments in several foreign jurisdictions.

For example, in R. v. Chaytor, the United Kingdom Supreme Court was dealing with false accounting by some members of the House of Lords. It reiterated comments of 1976 Royal Commission on Standards of Conduct in Public Life, that “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.”

In the landmark United States v. Brewster (“Brewster”), the United States Supreme Court noted in its majority opinion:

As we noted at the outset, the purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process. But financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.

The Privy Council, in an appeal from Ceylon in Attorney General of Ceylon v. Michael de Livera (“Livera”) took an approach similar to that in Satwant Singh, Hori Ram Singh, and Gill holding that “it is important to see that those [parliamentary] privileges do not cover activities that are not squarely within a member’s true function.

Although the Privy Council made no direct reference to the aforementioned Indian cases, that analogy was indeed drawn by the Privy Council in Attorney General for Hong Kong v. Ip Chiu, which referred to Livera and Gill to conclude similarly.

At the cost of repetition, it must be said that the principal objective of parliamentary immunity is to ensure that there is an atmosphere without fear for a people’s representative while he or she conducts parliamentary business. It can be reasonably stated that this purpose is not furthered by granting parliamentarians impunity from bribery prosecutions. Nonetheless, the majority in Narasimha Rao and the minority in Brewster have taken a contrary stance, holding that not enabling immunity in such cases leads to violation of legislative freedom and the right of people to be represented by independent and integral representatives.

The cautionary view

In Brewster, Justice Brennan, joined by Justice Douglas dissented to hold that by prosecution for bribery in such cases calls into question ‘the very motives’ behind ‘legislative acts’, that are precisely to be protected by parliamentary immunity. The immunity from prosecution granted to parliamentarians exists for a public good, that people deserve representatives who can perform their functions without any apprehension of liability, as reiterated in several aforementioned cases. Justice Brennan argued that this immunity protects any inquiry into votes or the motives behind them. He quoted Justice Frankfurter in Tenney v. Brandhove (“Tenney”):

In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.


According to this view, although bribery as a dishonest motive can be attributed to parliamentarians, the appropriate remedy for the same is self-regulation by the legislature (censure or expelling), and by the electorate (recall or voting out). Justice Brennan concluded that parliamentary immunity did not ‘immunize corrupt’ legislators. Instead, it reserved disciplinary powers to the legislature. The judiciary assuming those powers itself, and granting authorisation to the executive to conduct investigation and prosecution, would not be appropriate.

Justice G. N. Ray, who provided the determinative vote in Narasimha Rao, used similar reasoning: an effective parliamentary democracy, in his opinion, required that parliamentarians cast votes without any fear. Similarly, Justice S. P. Bharucha, for himself and Justice Rajendra Babu, quoted the aforesaid paragraph from Tenney to substantiate their determination.

This view of parliamentary immunity does not condone bribery or deem it as unworthy of parliamentary representatives, but rather argues that it is the legislature or the voters that pass a judgment on a representative accused of bribery rather than the courts. Enabling prosecution of parliamentary representatives for acts in relation of their votes may lead to intrusion by the executive into the representatives’ parliamentary business for criminal investigation. This investigation may very well be extended to any and all statements made or votes cast in the legislature, by merely accusing an extension of criminal and corrupt motivations. This is adequate to threaten the atmosphere of freedom that is to be ensured through parliamentary immunity.


The majority judgment in Narasimha Rao can be readily criticised for its absurd result of wholesale impunity for allegedly corrupt parliamentarians. It is indeed tempting to overrule Narasimha Rao¸ an opportunity for which will be in front of the Constitution bench in Sita Soren. Alternative, such overruling entails conferring power on the executive to investigate, arrest, and prosecute legislators that are responsible to hold the executive accountable. Therefore, the cautionary approach in Narasimha Rao and the minority opinion of Brewster must be given a thorough consideration, before that temptation to overrule is satisfied.