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

[This is a guest post by Karan Kamath.]


Introduction

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.

Conclusion

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.

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