Immunity to legislators: Morally repugnant, constitutionally protected?

On October 4, 2023, a seven-judge Constitution Bench headed by Chief Justice of India (CJI) DY Chandrachud and comprising Justices AS Bopanna, MM Sundresh, PS Narasimha, JB Pardiwala, Sanjay Kumar and Manoj Misra began hearing on a ‘re-look’ at the 1998 Constitution Bench decision in the PV Narasimha Rao case, which upheld the immunity of lawmakers from criminal prosecution for alleged ‘vote for money’ conduct in a no-confidence motion in Parliament.

The core issue flagged was,

“...above all, it must be noted that the purpose of Article 105 (2) and 194(2) is to ensure that members of the Parliament and that of the state legislatures 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 which citizens of the land do not possess.”

The case before the apex court - Sita Soren v. Union of India - arises from allegations that Soren, a former member of the Jharkhand Legislative Assembly, accepted a bribe in exchange for voting in favour of a particular candidate in the 2012 Rajya Sabha elections.

On September 20, 2023, the Supreme Court of India overruled the Modi government objection to a referral of the issue to a larger bench of seven judges and identified the following question to go under the scanner:

Whether a member of Parliament or State Legislature enjoys immunity from prosecution for the offence of bribery in relation to his vote or speech in Parliament or State Legislature?

Soren argued that she was immune from prosecution under Article 105(2) [& 194(2)] of the Constitution, which grants immunity to members of Parliament and legislative assemblies (MPs and MLAs) from prosecution for anything said or done in Parliament or a state legislature. However, the Supreme Court expressed doubts about the scope of this immunity the representatives have been enjoying, particularly, even in cases of bribery.

To an ordinary mortal, it may boggle the mind that a lawmaker enjoyed such an exalted privilege, as if an emperor, which a commoner did not. After all, the elected representative was a ‘servant of the people’. He or she was sent to the legislature to be vox populi. Surely, indulging in bribery and to speak or vote for lucre cannot be part of a lawmaker’s ‘duty’. To We the People, it may seem anachronistic that the 1998 PV Narasimha Rao judgment went the way it did, and has survived as good and binding law for 25 years now. We may feel the reference was long overdue.

From a constitutional perspective, the intent and content of the Constitution are sacrosanct and supreme. Not our feelings, emotions or perceptions. The privilege and immunity are meant for the mythical lawmaker with impeccable credentials of probity, honesty and integrity. Merely because the mettle of the ‘concerned’ lawmaker proved to be that of a lesser mortal or tainted being, constitutional principles cannot be forsaken or whittled down.

That is where the mysterious ways of law and constitutionalism may kick in.

The Constituent Assembly of India (1946-49) debated Article 105(2) of the Constitution, which grants immunity to MPs from criminal prosecutions when they speak or vote in Parliament. Some members of the Assembly argued that the immunity was necessary to protect the freedom of speech and expression of members of Parliament and to ensure that they could freely debate and discuss important issues without fear of legal repercussions. They argued that if MPs were constantly worried about being sued for defamation or other offenses, they would not be able to speak their minds freely.

Other members of the Assembly argued that the immunity was too broad and that it allowed MPs to get away with crimes. They argued that there should be some limits on the immunity, such as to prevent MPs from using their immunity to commit serious offenses.

The Assembly ultimately decided to adopt Article 105(2) and 194(2) with the broad immunity provision. However, the Assembly also adopted a number of safeguards to prevent MPs from abusing their immunity. For example, the Assembly made it clear that the immunity does not apply to cases where an MP has committed a serious crime, such as treason or murder.

The Constituent Assembly debate on Article 105(2) reflected the difficult balance that the framers of the Constitution had to strike between protecting the freedom of speech and expression of members of Parliament and ensuring that they were held accountable for their actions.

We follow the Westminster model, a British legacy. The constitutional law in England for privileges and immunity of parliamentarians from criminal prosecution for speech made or votes rendered in Parliament is based on Article IX of the Bill of Rights, 1689. It states that members of Parliament are immune from criminal prosecution for anything they say or do in Parliament, for both speech and votes. The Speech & Debate law in the USA may offer no different solutions.

In constitutional democracies, it would appear that if a lawmaker took a bribe outside the legislature and delivered on his promise by speaking or voting as committed, the constitution commends the immunity from criminal prosecution as a parliamentary privilege. It is not condoning the crime.

It is in recognition of free speech and independence of our lawmaker. If our lawmaker chooses to sell his speech or vote, our remedy may only be to throw him or her out in the hustings. For the Constitution says so, and it alone is supreme. Or so one believes.

Yet, if one has read the tea leaves right, from the exchanges during the seven-judges Bench hearings over two days, it would appear that the law lords may unsheathe the immunity where the alleged crime of bribery got ‘concluded’ outside the house. The provisions of the Prevention of Corruption Act,1988 may save the day for you and I as We the People. That is a gut feel.

We will, however, have to wait for what the law lords on the seven-judges Bench may yet pronounce.

Narasimhan Vijayaraghavan is a practicing advocate in the Madras High Court.