Legal immunity enjoyed by legislators from prosecution in bribery cases: SC refers the 25-year-old judgment to seven-judge Constitution bench

On September 20, 2023, the Supreme Court of India referred the 25-year-old judgment in PV Narasimha Rao vs. State to a seven-judge Constitution bench. The judgment held that the legislators enjoyed legal immunity from prosecution in cases of bribery as per Articles 105(2) and 194(2) of the Indian Constitution. 

• Article 105(2) of the Indian Constitution states 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.” 
• Article 194(2) states that “No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.”

In the PV Narasimha Rao vs. State judgment, the Supreme Court bench with a 3:2 majority held that Article 105(2) protects MPs from facing bribery charges. This decision of a five-judge bench of the Supreme Court (SC) will be reconsidered by a larger seven-judge bench. On September 20, the matter was heard by a five-judge bench including Chief Justice of India DY Chandrachud, Justice JB Pardiwala, Justice AS Bopanna, Justice Manoj Misra, and Justice MM Sundresh. The bench was hearing a matter where a plea was filed by the sister-in-law of current Jharkhand Chief Minister Hemant Soren, Sit Soren who was accused of taking a bribe in the 2012 Rajya Sabha Elections to vote for a particular candidate.

During the court proceedings, the Attorney General for India R Venkataramani argued that there was no need to refer the judgment for reconsideration to a larger bench. He also said that the present case should rest on its facts whereas CJI stated “As a Constitution Bench, if we have a particular issue which deeply affects the morality of our polity- we shouldn’t in that sense not take an opportunity to straighten the law, We have four eminent counsels appearing in this. What better opportunity to straighten the law? Normally you don’t want to get into a broader issue of law where you may not feel that you’d get the correct assistance because then the entire burden is on us. Even then we take up the burden sometimes. But here you have squarely- a conflict between the viewpoints…we should set the law straight.”

After hearing the contentions, the SC bench observed, “While Article 19(1)(a) recognizes an individual right to free speech, the object of Articles 105(2) and 194(2) does not prima facie appear to render immunity from the launch of penal proceedings for violation of criminal law which may arise independently from the exercise of rights and duties as a member of Parliament.” It further added, “One of us (CJI Chandrachud) while delivering judgment in Kalpana Mehta had occasion to observe that the correctness of Narasimha Rao would fall for reconsideration in an appropriate case in the future should it become necessary. For the above reasons, we’re of the view that the correctness of the view of the majority in Narasimha Rao shall be considered by a larger bench of seven judges.”

The SC bench further added that “The purpose of Article 105(2) and Article 194(2) is to ensure that members of parliament and of state legislatures are able to discharge duties in an atmosphere of freedom without fear of the consequences that may follow. The object 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.” Moreover, CJI orally remarked that the larger bench would be constituted in a week or two.