In the recent landmark ruling of Sita Soren vs. Union of India,[1] a constitution bench of the Supreme Court unanimously ruled on, inter alia, the liability of a Member of Parliament with respect to bribery under the Prevention of Corruption Act, 1988 (“PCA”), and the legislative immunity granted by the Constitution under Articles 105 and 194. This judgement overruled a long-standing position of law, laid down in PV Narasimha Rao vs. State (CBI/SPE ), which dealt with a Member of Parliament’s immunity from prosecution on charges of bribery in a criminal court.[2] This article analyses the position of anti-corruption provisions and its impact in view of the observations in Sita Soren.
Brief Facts
The appellant, a member of the Legislative Assembly of Jharkhand, allegedly accepted a bribe from an independent candidate in exchange for casting her vote in his favour. However, during the open balloting for the Rajya Sabha seat, the appellant did not vote for the alleged bribe giver and cast her vote in favour of a candidate from her own party.
Key issues considered by the Supreme Court with respect to the PCA:
- Whether the offence of bribery under Section 7[3] of the PCA is complete once the bribe is accepted, without the commission of the act for which the bribe is given?
- Does a legislator enjoy immunity from prosecution under Article 105(2)[4] or Article 194(2)[5] of the Constitution of India (“the Constitution”) for accepting bribes to vote in Parliament or an Assembly?
Ratio of the Judgement
With respect to bribery, the Court has held that it is immaterial whether the act for which the bribe is given is performed or not. It further held that under Section 7 of the PCA, 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. The Hon’ble Supreme Court relied on the first explanation to Section 7 to support such an interpretation by expressly stating 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 bribery of a public servant has been pegged at receiving or agreeing to receive an undue advantage and not the actual performance of the act for which the undue advantage is obtained.
On legislative immunity under Articles 105(2) and 194 of the Constitution, the Supreme Court has held that the purpose of granting immunity under the above provisions was tofacilitate robust democratic discussions within legislative bodies. However, it was held that the offence of bribery is not rendered immune under Article 105(2) of the Constitution and its corresponding provision being Article 194 of the Constitution as a member engaging in bribery is committing a crime, which is not essential for the casting of a vote or towards the ability to decide how to cast the vote.
Analysis
The Supreme Court has correctly recognised that corruption is not solely about the outcome, but significantly about the intention to engage in corrupt behaviour.
The Court has focused on the primary objective of Section 7 of the PCA, which is to deter public officials from accepting bribes and acting in a way that is detrimental to public interest. To achieve this, the legislature has deliberately crafted a stringent framework that encompasses various stages of bribery, ranging from the acceptance or attempted acceptance of the bribe, to the commission of the act for which the bribe was accepted, ensuring that the offense is holistically addressed.
The Court recognised that the offense of bribery is complete at various stages namely, “obtaining”, “accepting” or “attempting” to obtain an undue advantage or bribe. It held that a violation occurs under the PCA regardless of the public official successfully receiving the bribe or merely attempting to do so. The Supreme Court’s approach aligns with the preventive intent of the law, which aims to address a long-standing public issue that has the potential to stunt the country’s development and democratic set-up. By criminalising the mere act of obtaining or accepting a bribe, the Court aims to nip the issue of corruption in the bud, preventing it from escalating further by setting a threshold that is low enough to ensure culpability even at the (early) stage of commission of the offence.
In terms of the purposeful interpretation of Section 7 of the PCA, the Court cured the mischief under 105(2) of the Constitution in a more holistic and contextual sense. Article 105(2) of the Constitution uses the expression “in respect of anything”, which the Court in P.V. Narasimha Rao interpreted in an overly broad manner. By suggesting that Article 105(2) provides absolute immunity from everything, whether an offence or not, provided it has a nexus with speech or vote in the Parliament, the judges in P.V. Narasimha Rao did not properly consider the legislative intent of Articles 105(2) and 194 of the Constitution. Accordingly, the Court’s decision in this case also correctly affirms that privileges and immunities granted to members of Parliament should not be gateways to claim exemptions from the general law of the land. Articles 105(2) and 194 of the Constitution primarily protect the freedom of speech of members of the house, to ensure effective democratic deliberations, which lead to more reasoned law-making. The acceptance of a bribe to act (or not act) a certain way within the precincts of the Parliament threatens the democratic set up by inhibiting a member’s exercise of free will and conscience.
Lastly, on a cautious note, it is stated that such an interpretation might also give rise to the targeting Members of Parliament, who have cast their vote in favour (or not), leading to false allegations and inquiries. A balance in implementation needs to be struck.
For further information, please contact:
Sara Sundaram, Partner, Cyril Amarchand Mangaldas
ara.sundaram@cyrilshroff.com
[1] Criminal Appeal No. 451 of 2019
[2] (1998) 4 SCC 626
[3] Section 7 of the PCA talks about the offence relating to a public servant being bribed. Accordingly, a public servant commits an offense if they obtain, accept, or attempt to obtain an undue advantage from any person. The intention behind this action is crucial; it must be with the purpose of performing or causing the performance of a public duty improperly or dishonestly, or to induce forbearance from performing such duty..
[4] Article 105(2) of the Constitution states that Members of Parliament enjoy immunity from legal proceedings for their actions within the parliamentary context. This immunity covers two key aspects:
- Speech and Voting: Members of Parliament cannot be held legally accountable for anything they say during parliamentary sessions or any votes they cast.
- Publications: Additionally, no person can be held liable for publishing parliamentary reports, papers, votes, or proceedings authorized by either House of Parliament.
[5] Article 194 of the Constitution states that subject to constitutional provisions and procedural rules, there exists freedom of speech within the Legislature of every State. This means that members of the State Legislature can express their views in the parliament without undue restrictions. Further, members of the State Legislature cannot be held legally liable for anything they say during legislative sessions and any votes that they cast. This immunity also extends to proceedings in any court.
