Brief Facts
- An election was held on 30 March 2012 to elect two members of the Rajya Sabha representing the State of Jharkhand. The appellant, belonging to the Jharkhand Mukti Morcha, 2 was a member of the Legislative Assembly of Jharkhand. The allegation against the appellant is that she accepted a bribe from an independent candidate for casting her vote in his favour. However, as borne out from the open balloting for the Rajya Sabha seat, she did not cast her vote in favour of the alleged bribe giver and instead cast her vote in favour of a candidate belonging to her own party. The round of election in question was annulled and a fresh election was held where the appellant voted in favour of the candidate from her own party again.
- The appellant moved the High Court to quash the chargesheet and the criminal proceedings instituted against her. The appellant claimed protection under Article 194(2) of the Constitution, relying on the judgment of the Constitution bench of this Court in PV Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626
- However, the High Court dismissed the Petition, against which the Appellant approached the Supreme Court. The Two Judge Bench of the Supreme Court The bench was of the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench. The case was subsequently referred to the Seven Judges Bench of the Supreme Court to decide the reference.
Issues
- Whether by virtue of Articles 105 and 194 of the Constitution a Member of Parliament or the Legislative Assembly, as the case may be, can claim immunity from prosecution on a charge of bribery in a criminal court?
- Whether the performance of work for which bribe has been received is necessary for commission of offence under section 7 of the Prevention of Corruption Act?
Held
- The Seven Judge Bench of the Supreme Court overruled the judgment of majority in the case PV Narasimha v. State (supra), with the following conclusions:
“188.1 The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents of this Court. The judgment of the majority in PV Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered;
188.2. Unlike the House of Commons in the UK, India does not have ‘ancient and undoubted’ privileges which were vested after a struggle between Parliament and the King. Privileges in pre-independence India were governed by statute in the face of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution;
188.3. Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review;
188.4. An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the twofold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator;
188.5. Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery;
The expressions “anything” and “any” must be read in the context of the accompanying expressions in Articles 105(2) and 194(2). The words “in respect of” means ‘arising out of’ or ‘bearing a clear relation to’ and cannot be interpreted to mean anything which may have even a remote connection with the speech or vote given;
188.7. Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee;
188.8. Corruption and bribery by members of the legislatures erode probity in public life;
188.9. The jurisdiction which is exercised by a competent court to prosecute a criminal offence and the authority of the House to take action for a breach of discipline in relation to the acceptance of a bribe by a member of the legislature exist in distinct spheres. The scope, purpose and consequences of the court exercising jurisdiction in relation to a criminal offence and the authority of the House to discipline its members are different;
188.10. The potential of misuse against individual members of the legislature is neither enhanced nor diminished by recognizing the jurisdiction of the court to prosecute a member of the legislature who is alleged to have indulged in an act of bribery;
188.11. The offence of bribery is agnostic to the performance of the agreed action and crystallizes on the exchange of illegal gratification. It does not matter whether the vote is cast in the agreed direction or if the vote is cast at all. The offence of bribery is complete at the point in time when the legislator accepts the bribe; and
188.12. The interpretation which has been placed on the issue in question in the judgment of the majority in PV Narasimha Rao (supra) results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194.”
Requirement of Section 7 of the PC Act
- Under Section 7 of the PC Act, the mere “obtaining”, “accepting” or “attempting” to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The first explanation to the provision further strengthens such an interpretation when it expressly states that the “obtaining, accepting, or attempting” to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained.
Relevant Para No.
- 117, 188 and 189