Manish Tewari | Don’t be in haste to curtail parliamentary privileges

The Hon’ble Supreme Court, vide its judgment dated March 4, 2024, in Sita Soren vs Union of India, Crl. A No. 451 of 2019 (“Sita Soren”) has held that legislators are not protected by parliamentary privilege insofar as prosecution on charges of bribery is concerned. While doing so, the court overruled the majority decision in P.V. Narasimha Rao vs State (1988) 4 SCC 626 (“Narasimha”), where the court had held that it would be incorrect to whittle down the protective scope of Articles 105(2) and 194(2), to conform to what might seem right or reasonable.

Unfortunately Parliament in its wisdom decided over its 17 terms not to codify parliamentary privileges as mandated in terms of Article 105(3) of the Constituion of India. They left the privilages pari-passu to those enjoyed by members of the House of Commons in the United Kingdom. In the current Lok Sabha, I had moved a private member’s bill to codify the privilages.

In Sita Soren, the court holds inter alia, that in order for a legislator to claim immunity she must fulfil the following twofold test: (a) that the claim is tethered or connected to the collective functioning of the house and; (b) that the act in question is necessary for the discharge of a legislator’s duties. Second, the court held that bribery is not covered by the privileges under Articles 105(2) and 194(2) even if the same were to be said to be in connection with a speech in the House or a committee. The court also noted that the potential of misuse against individual members is not a valid consideration as recognizing the jurisdiction of the court to prosecute a member of a legislature neither diminishes such potential misuse nor enhances it.

At the outset, there can be no qualms about the Hon’ble Supreme Court holding that corruption and bribe-takers erode probity in public life. There is also no quarrel with the proposition that legislators ought to maintain the highest integrity in their work and ensure the dignity of the house, more particularly, of the people whose voices they represent.

The judgment, however, overlooks a crucial aspect: The concept of parliamentary privileges and immunities was provided for in the Constitution precisely to ensure that legislators, especially those who are in the minority in a particular House, are not harassed or unlawfully targeted. This is such a critical right that any indignation at certain stray acts or actions which demean the House ought not to lead to the whittling down of the privileges and immunities which form the bedrock of the rule of law.

The judgement in Sita Soren primarily rests on the functionality and essentiality tests. That for parliamentary privileges to apply, the act complained of must bear a nexus to the collective functioning of the house and also to the essential duties which a legislator is required to perform. The judgment posits that taking a bribe to vote in a legislature cannot be considered essential to the casting of the vote or the ability to decide on how the vote is to be cast. In Narasimha, the court was aware of the moral dilemma it faced in ensuring that parliamentary privileges were kept intact even though the bribery allegations against the legislators therein would not be prosecuted. The court, in Narasimha, did so because it felt that parliamentary privileges are an edifice of parliamentary democracy and any indignation at individual acts must give way to the immunities of the House.

While no one sides with bribery or corruption, which are malaises to be eliminated — however, it is crucial that while doing so we do not end up handing over a tool to the ruling dispensation (whosoever it may be at any given point of time) to create a chilling effect on legislators when they vote or debate. The potential of abuse is such that it could lead to the slow denudation of the very foundations of parliamentary sovereignty. Until recently, the sanctity of parliamentary proceedings provided legislators with a safe haven to express their concerns without the Damocles’ sword of executive reprisal. However, the spectre of portentous constitutionalism looms large which the court in Sita Soren ought to have taken into consideration.

Further, the object of privileges is to enable members to speak their minds in Parliament and vote without being answerable for such speech in a court of law. Members need the widest protection of immunity against all civil and criminal proceedings that bear any nexus to their speech or vote. It is for this reason that a member is not liable to any proceedings, in any court in respect of anything said or any vote given by him.

It is not as if the Constitution does not provide safeguards against abuse of parliamentary privileges by members. Indeed, Parliament has the power to exercise its privilege and punish members it deems to have violated the sanctity of the House. The cases of H.G Mudgal to Raja Ram Pal are a testament to the use of this power by Parliament over the years. The Constitution leaves the protection of the dignity of Parliament to Parliament itself.

It’s not hard to imagine a scenario where a member, after delivering a speech or casting a vote that displeases those in power, finds themselves facing prosecution. The charges could allege their involvement in an agreement or conspiracy to influence parliamentary outcomes, in exchange for a bribe. Votes and speeches within any legislative body typically pertain to issues championed by the ruling party. Consequently, every ruling party harbours a natural inclination to diminish Opposition voices, or at the very least, instil a sense of trepidation among dissenting legislators. And by the time the courts decide on the validity and legality of the allegations, the concerned member would be out of House and miss voting and speaking on matters of great public importance.

It is this potential mischief which the Hon’ble Court ought to have considered that, in my respectful submission, is the sole fault with the judgment in Sita Soren. It is my solemn hope that the judgment is read in its letter and spirit and not used to create a chilling effect on the freedom of speech of parliamentarians and legislators. The only saving grace now would be a robust conflict of interest decleration process mandated by a law of Parliament that should completely indemnify members in case there is any vindictive persecution because of malicious intent.