2023INSC856

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 451 OF 2019

Sita Soren … Appellant

Versus

Union of India … Respondent

O R D E R

1

The Criminal Appeal arises from a judgment and order dated 17 February 2014 of

the High Court of Jharkhand in Writ Petition (Criminal) No 128 of 2013.

2 An election was held on 30 March 2012 for two members of the Rajya Sabha

representing the State of Jharkhand. The appellant was a member of the

Legislative Assembly belonging to the Jharkhand Mukti Morcha. 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 The round of election in question was rescinded and a fresh

election was held at which the appellant voted in favour of the candidate

2

belonging to her own party.

3 The appellant moved the High Court for quashing the charge -sheet and the

criminal proceedings instituted against her. The appellant rel ied on the provisions

of Article 194(2) of the Constitution. The High Court by the impugned judgement

declined to quash the criminal proceedings on the ground that the appellant had

not cast her vote in favour of the alleged bribe giver and thus, is not entitled to the

protection under Article 194(2).

4 The judgment of the High Court has given rise to the present appeal.

5 On 23 September 2014, when the proceedings were placed before a bench of

two judges of this Court, the Court was of the view that since the issue arising for

consideration is “substantial and of general public importance”, it should be

placed before a larger bench of three judges of this Court.

6 On 7 March 2019, when a Bench of three judges of this Court took up the appeal,

it noted that the gravamen of the charge against the appellant is that she had

accepted a bribe to vote in favour of a particular candidate in the Rajya Sabha

election for a member representing Jharkhand. The precise question, as the three

Judge Bench observed, was dealt with in a judgment of a Bench of five judges in

PV Narasimha Rao Vs State (CBI/SPE)

1

. Two judges on the Bench, Justice S.C.

1

(1998) 4 SCC 626

3

Agarwal and Justice A.S. Anand, took the view that the immunity granted under

Article 105(2) and correspondingly, under Article 194(2) of the Constitution would

not extend to cases where bribery for making a speech or voting in a particular

manner in the House is alleged. However, the view of the majority was to the

contrary.

7 The three-judge Bench hearing the present appeal 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”, it required to be referred to a

larger Bench, as may be considered appropriate. Accordingly, the matter has

been placed, pursuant to the administrative directions of the Chief Justice of India,

before this Bench of five judges.

8 Before proceeding further, it would be appropriate to note that prior attempts to

challenge the correctness of the constitutional position in PV Narsimha Rao have

not borne fruit. Review petitions (Review Petition Nos. 2210- 27/1998) were instituted

before a Bench of five judges of this Court questioning the correctness of the

decision in PV Narsimha Rao . The petitions for review were dismissed on 18 July

2002 on the ground of a delay of 179 days in filing the review petitions, reported

as State (CBI/SPE) Vs PV Narasimha Rao

2

.

9 In addition to the above, a petition under Article 32 of the Constitution (Writ

2 (2001) 9 SCC 249

4

Petition (Civil) diary No 7490/99) seeking a declaration on the correctness of the

position in PV Narsimha Rao was instituted before this Court. By an order dated 1

May 2000 in Centre for PIL & Anr Vs Union of India

3

, a Bench of three judges of this

Court referred the petition to a Bench of five judges while noting a submission

regarding the maintainability of the petition. Eventually, by an order dated 18 July

2002, the petition was dismissed on the ground of maintainability in view of the

judgment in Rupa Ashok Hurra Vs. Ashok Hurra & Anr

4

.

10 Mr. Raju Ramachandran, senior counsel appearing on behalf of the appellant

submitted that a reference of the correctness of the decision in PV Narsimha Rao

(supra) may not strictly speaking be necessary in the facts of the present case. Mr.

Ramachandran, in his written submissions dated 17 September 2023, as well as in

the course of the oral arguments, submitted that none of the contesting parties

has challenged the ratio in PV Narsimha Rao (supra). On the contrary, it is urged

that the contesting parties are ad idem on the ratio and what is sought to be

contested is the applicability of the judgment. The appellant is of the view that the

Judgement in PV Narsimha Rao applies squarely to the instance case. However,

the respondent has contended that the judgment does not apply as polling for

the Rajya Sabha election was held outside the precincts of the House and cannot

be considered as a proceeding of the House in a manner similar to a No -

Confidence Motion. On this basis, Mr. Ramachandran has submitted that the

3 (2000) 9 SCC 393

4

(2002) 4 SCC 388

5

reference would not be warranted.

11 Mr. R Venkataramani, Attorney General for India agrees with Mr. Raju

Ramachandran that a reference is not warranted, though they disagree on the

applicability of the judgement in PV Narsimha Rao to the present case . According

to Mr. Venkataramani, the correctness of PV Narsimha Rao does not arise as an

election to the Rajya Sabha cannot be considered as a “proceeding of the

House”. Mr. Venkataramani primarily relies on the decisions of this Court in:

(i) Pashupati Nath Sukul Vs Nem Chandra Jain & Ors;

5

(ii) Madhukar Jetly Vs Union of India & Ors

6

; and

(iii) Kuldip Nayar & Ors Vs Union of India & Ors.

7

12 Apart from the significance of the issues raised, which shall be explained in brief a

little later in the course of this order, we are not inclined to accept the plea that

the correctness of the decision in PV Narasimha Rao (supra) does not arise in this

case. Firstly, it is common ground that the impugned judgment of the High Court

relied on the judgment of the majority in PV Narasimha Rao. Secondly, it is beyond

doubt that the defence itself relies on the decision of the majority. The correctness

of the view which has been propounded in the judgment of the majority in PV

Narasimha Rao would, therefore, have to be enquired into during the course of

5

(1984) 2 SCC 404

6

(1997) 11 SCC 111

7

(2006) 7 SCC 1

6

the hearing of the present case.

13 It is a settled position of judicial discipline that only a bench of coequal strength

may express an opinion doubting the correctness of a view taken by an earlier

Bench of coequal strength. If such a doubt is expressed, the matter may be

placed before a Bench consisting of a quorum larger than the one which the

pronounced the decision in challenge.

8

Having determined that the correctness

of the decision in PV Narasmiha Rao does arise in the present case, it becomes

necessary for us to determine as to whether prima facie reconsideration of the

judgment in PV Narasimha Rao is warranted, and if the matter should be placed

before a larger bench.

14 The controversy in PV Narasimha Rao and the present case, turns on the

interpretation of the provisions of Article 105(2) of the Constitution and the

equivalent provision, Article 194(2) of the Constitution. The former deals with the

powers, privileges and immunities of the members of the Houses of Parliament,

while the latter confers a similar immunity to members of the State Legislatures.

15 Article 105(2) of the Constitution provides as follows:

“105(2) 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

8

(2019) 3 SCC 39, paragraph 10 at page 79.

7

proceedings.”

16

The language of Article 105(2) indicates that the immunity attaches to a Member

of Parliament “in respect of anything said or any vote given by him” in Parliament

or any committee thereof. The expression “anything said, or any vote given”

would postulate that the immunity is attached with respect to conduct, namely,

a vote which has been given or a speech which has been made in Parliament or

any committee of Parliament. The expression “in respect of anything said or any

vote given” arose for consideration before the Constitution Bench in PV Narasimha

Rao. The charge in that case was that the bribe takers had taken a bribe to secure

the defeat of a No Confidence Motion on the floor of the House. In analysing the

above expression, Justice SP Bharucha, took the view that Article 105(2) would

have to be interpreted broadly so as to protect Members of Parliament against

proceedings in Court that relate to or are concerned with or have connection or

nexus with anything said or vote given by them in Parliament (Paragraph 133 at

page 729). Justice Bharucha was of the view that the nexus between the alleged

conspiracy/bribe and the No Confidence Motion was explicit, the charge being

that the alleged bribe takers had received bribes to secure the defeat of the No

Confidence Motion in Parliament.

17 The Attorney General for India, in that case, had urged before the Constitution

Bench that though the words “in respect of” must receive a broad meaning, the

protection under Article 105(2) of the Constitution is limited to court proceedings

that impugn the speech that is given or the vote that is cast or anything that arises

8

therefrom. Noting that the object of the protection was to enable Members of

Parliament to speak their minds in Parliament and vote in the same way without

the fear of being made answerable, the judgment of Justice S.P. Bharucha

contains the following observations (Paragraph 136 at pg. 730):

“… It is not enough that Members should be

protected against civil action and criminal

proceedings, the cause of action of which is their

speech or their vote. To enable Members to

participate fearlessly in parliamentary debates,

Members need the wider protection of immunity

against all civil and criminal proceedings that bear

a nexus to their speech or vote. It is for that reason

that a Member is not “liable to any proceedings in

any court in respect of anything said or any vote

given by him”. Article 105(2) does not say, which it

would have if the learned Attorney General were

right, that a Member is not liable for what he has

said or how he has voted. While imputing no such

motive to the present prosecution, it is not difficult

to envisage a Member who has made a speech or

cast a vote that is not to the liking of the powers

that be being troubled by a prosecution alleging

that he had been party to an agreement and

conspiracy to achieve a certain result in Parliament

and had been paid a bribe.”

18

The learned Judge observed that he was conscious of the seriousness of the

offence which the alleged bribe takers were said to have committed and that by

reason of the lucre that they have received, they enabled the Government to

survive. But the judgment opined, “our sense of indignation should not lead us to

construe the Constitution narrowing, impairing the guarantee to effective

parliamentary participation and debate.” However, it is significant to note that

despite the above observations, the majority was of the view that the immunity

9

which covers bribe takers did not protect a particular Member of Parliament (Mr

Ajit Singh) in the case, as ultimately, he did not cast his vote in the No Confidence

Motion.

19 The contrary view of two judges in PV Narasimha Rao was elucidated in the

judgment of Justice S.C. Agarwal. The learned Judge observed that the expression

“in respect of” would have to be construed in its true perspective. The minority

recognized that while the object and purpose of Article 105(2) of the Constitution

is to enable Members of Parliament to speak freely or to cast their votes without

fear of consequences an interpretation that places Members of Parliament above

the law would be repugnant to the healthy functioning of a parliamentary

democracy. In this context, the divergence in the views of Justice S C Agarwal

(speaking for two judges) with that of Justice S.P Bharucha (speaking for two

judges) emerges from the following extract (paragraph 47 at page 673):

“47. As mentioned earlier, the object of the

immunity conferred under Article 105(2) is to ensure

the independence of the individual legislators.

Such independence is necessary for healthy

functioning of the system of parliamentary

democracy adopted in the Constitution.

Parliamentary democracy is a part of the basic

structure of the Constitution. An interpretation of

the provisions of Article 105(2) which would enable

a Member of Parliament to claim immunity from

prosecution in a criminal court for an offence of

bribery in connection with anything said by him or

a vote given by him in Parliament or any

committee thereof and thereby place such

Members above the law would not only be

repugnant to healthy functioning of parliamentary

democracy but would also be subversive of the

rule of law which is also an essential part of the

basic structure of the Constitution. It is settled law

10

that in interpreting the constitutional provisions the

court should adopt a construction which

strengthens the foundational features and the

basic structure of the Constitution. (See: Sub-

Committee on Judicial Accountability v. Union of

India [(1991) 4 SCC 699] SCC at p. 719.) The

expression “in respect of” precedes the words

“anything said or any vote given” in Article 105(2).

The words “anything said or any vote given” can

only mean speech that has already been made or

a vote that has already been given. The immunity

from liability, therefore, comes into play only if a

speech has been made or vote has been given.

The immunity would not be available in a case

where a speech has not been made or a vote has

not been given. When there is a prior agreement

whereunder a Member of Parliament has received

an illegal consideration in order to exercise his right

to speak or to give his vote in a particular manner

on a matter coming up for consideration before

the House, there can be two possible situations.

There may be an agreement whereunder a

Member accepts illegal gratification and agrees

not to speak in Parliament or not to give his vote in

Parliament. The immunity granted under Article

105(2) would not be available to such a Member

and he would be liable to be prosecuted on the

charge of bribery in a criminal court. What would

be the position if the agreement is that in lieu of the

illegal gratification paid or promised the Member

would speak or give his vote in Parliament in a

particular manner and he speaks and gives his vote

in that manner? As per the wide meaning

suggested by Shri Rao for the expression “in respect

of”, the immunity for prosecution would be

available to the Member who has received illegal

gratification under such an agreement for

speaking or giving his vote and who has spoken or

given his vote in Parliament as per the said

agreement because such acceptance of illegal

gratification has a nexus or connection with such

speaking or giving of vote by that Member. If the

construction placed by Shri Rao on the expression

“in respect of” is adopted, a Member would be

liable to be prosecuted on a charge of bribery if he

accepts bribe for not speaking or for not giving his

vote on a matter under consideration before the

House but he would enjoy immunity from

11

prosecution for such a charge if he accepts bribe

for speaking or giving his vote in Parliament in a

particular manner and he speaks or gives his vote

in Parliament in that manner. It is difficult to

conceive that the framers of the Constitution

intended to make such a distinction in the matter

of grant of immunity between a Member of

Parliament who receives bribe for speaking or

giving his vote in Parliament in a particular manner

and speaks or gives his vote in that manner and a

Member of Parliament who receives bribe for not

speaking or not giving his vote on a particular

matter coming up before the House and does not

speak or give his vote as per the agreement so as

to confer an immunity from prosecution on charge

of bribery on the former but denying such immunity

to the latter. Such an anomalous situation would be

avoided if the words “in respect of” in Article 105(2)

are construed to mean “arising out of”. If the

expression “in respect of” is thus construed, the

immunity conferred under Article 105(2) would be

confined to liability that arises out of or is

attributable to something that has been said or to

a vote that has been given by a Member in

Parliament or any committee thereof. The immunity

would be available only if the speech that has

been made or the vote that has been given is an

essential and integral part of the cause of action

for the proceedings giving rise to the liability. The

immunity would not be available to give protection

against liability for an act that precedes the

making of the speech or giving of vote by a

Member in Parliament even though it may have a

connection with the speech made or the vote

given by the Member if such an act gives rise to a

liability which arises independently and does not

depend on the making of the speech or the giving

of vote in Parliament by the Member. Such an

independent liability cannot be regarded as

liability in respect of anything said or vote given by

the Member in Parliament. The liability for which

immunity can be claimed under Article 105(2) is the

liability that has arisen as a consequence of the

speech that has been made or the vote that has

been given in Parliament.”

12

20 Significantly, Justice Agarwal, in the course of his judgment also dwelt on the issue

as to when the offence of bribery is complete. According to the view of the

learned Judge, the offence of bribery is complete against the receiver of a bribe,

if he takes or agrees to take money for a promise to act in a certain way. The

offence would be complete with the acceptance of the money or on the

agreement to accept the money being concluded and is not dependent on the

performance of the illegal promise by the receiver. The receiver of the money will

be treated to have committed the offence even if he were to default in the

performance of the bargain. Hence, it was Justice Agarwal’s view that for proving

the offence of bribery, all that is required to be established is that the offender had

received or agreed to receive money for a promise to act in a certain way and it

was not necessary to prove further that he had actually acted in the way as

promised.

21 The third judgment in the case was delivered by Justice G.N. Ray. A reading of the

judgment of Justice GN Ray indicates that the learned Judge concurred with

Justice S.C. Agarwal in concluding that:

(i) A Member of Parliament is a public servant under Section 2(c) of the Prevention

of Corruption Act 1988; and

(ii) Since there is no authority competent to grant sanction for the prosecution of a

Member of P arliament under Section 19(1) of the Prevention of Corruption Act

1988, the Court can take cognizance of the offences mentioned in the provision

13

but the prosecuting agency must obtain the permission of the Chairperson of the

Rajya Sabha or, as the case may be, the Speaker of the Lok Sabha before filing

a charge-sheet against the Member of Parliament in a criminal court.

22 On the above two issues, Justice G.N. Ray concurred with the judgment of Justice

SC Agarwal. However, on the interpretation of Article 105(2), Justice G.N. Ray

concurred with the judgment of Justice S.P Bharucha speaking for two judges.

Hence, the judgment of Justice S.P. Bharucha, on the interpretation of Article

105(2) represents the view of the majority of three learned judges.

23 We may note, at this stage, that besides Mr. Raju Ramachandran, senior counsel

and Mr. R Venkataramani, Attorney General for India, we have also heard Mr. P.S.

Patwalia, senior counsel who has been appointed as Amicus Curiae to assist the

Court, Mr. Gopal Sankarnarayanam, senior counsel, appearing on behalf of the

intervener and Dr. Vivek Sharma, counsel appearing on behalf of the intervener.

24 We are inclined to agree with the submission of the Amicus Curiae and Mr Gopal

Sankarnarayan, senior counsel that the view which has been expressed in the

decision of the majority in PV Narasmiha Rao requires to be reconsidered by a

larger Bench. Our reasons prima facie for doing so are formulated below:

(i) Firstly, the interpretation of Article 105(2) and the corresponding provisions of

Article 194(2) of the Constitution must be guided by the text, context and the

object and purpose underlying the provision. The fundamental purpose and

object underlying Article 105(2) of the Constitution is that Members of

Parliament, or as the case may be of the State Legislatures must be free to

14

express their views on the floor of the House or to cast their votes either in the

House or as members of the Committees of the House without fear of

consequences. While Article 19(1)(a) of the Constitution recognises the

individual right to the freedom of speech and expression, Article 105(2)

institutionalises that right by recognising the importance of the Members of

the Legislature having the freedom to express themselves and to cast their

ballots without fear of reprisal or consequences. In other words, the object of

Article 105(2) or Article 194(2) does not prima facie appear to be to render

immunity from the launch of criminal proceedings for a violation of the

criminal law which may arise independently of the exercise of the rights and

duties as a Member of Parliament or of the legislature of a state;

(ii) Secondly, in the course of judgment in PV Narasmiha Rao, Justice S.C.

Agarwal noted a serious anomaly if the construction in support of the

immunity under Article 105(2) for a bribe taker were to be accepted: a

member would enjoy immunity from prosecution for such a charge, if t he

member accepts the bribe for speaking or giving their vote in Parliament in

a particular manner and in fact speaks or gives a vote in Parliament in that

manner. On the other hand, no immunity would attach, and the member of

the legislature would be liable to be prosecuted on a charge of bribery, if

they accept the bribe for not speaking or for not giving their vote on a matter

under consideration before the House but they act to the contrary. This

anomaly, Justice Agarwal observed, would be avoided if the words “in

15

respect of” in Article 105(2) are construed to mean ‘ arising out of’ . In other

words, in such a case, the immunity would be available only if the speech

that has been made or the vote that has been given is an essential and

integral part for the cause of action for the proceedings giving rise to the

law; and

(iii) Thirdly, the judgment of Justice SC Agarwal has specifically dwelt on the

question as to when the offence of bribery would be complete. The

judgment notes that the offence is complete with the acceptance of the

money or on the agreement to accept the money being concluded and is

not dependent on the performance of the illegal promise by the receiver.

The receiver of the bribe would be treated to have committed the offence

even when he fails to perform the bargain underlying the tender and

acceptance of the bribe. This aspect bearing on the constituent elements

of the offence of a bribe finds elaboration in the judgment of Justice Agarwal

but is not dealt with in the judgment of the majority.

25 We have already noted above that efforts in seeking a review of the judgment in

PV Narasmiha Rao and later in proceedings under Article 32 of the Constitution

were not successful. One of us (Justice Dr. D.Y. Chandrachud), while delivering a

concurrent opinion for a Bench of five judges in Kalpana Mehta Vs Union of India

9

(para 221) had occasion to observe that should the correctness of the view in PV

9

(2018) 7 SCC 1

16

Narasmiha Rao fall for reconsideration in an appropriate case, a larger bench

may have to consider the issue. The view of the majority has serious ramifications

for the polity and the preservation of probity in public life.

26 For the above reasons, prima facie at this stage, we are of the considered view

that the correctness of the view of the majority in PV Narasmiha Rao should be

reconsidered by a larger Bench of seven judges.

27 We accordingly request the Registry to place the papers before the Chief Justice

for constituting a larger Bench of seven judges.

...........…...….......………………....…C JI.

[Dr Dhananjaya Y Chandrachud]

..............…...….......………………....…J.

[A S Bopanna]

.............…...….......………………....…J.

[M M Sundresh]

.............…...….......………………....…J.

[J B Pardiwala]

.............…...….......………………....…J.

[Manoj Misra]

New Delhi;

September 20, 2023

GKA