Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy, the Supreme Court said on Monday.
A seven-judge bench headed by Chief Justice DY Chandrachud, which overruled its 1998 verdict, said members of the legislature and those involved in the work of the committees of the legislature must be able to exercise their free will and conscience to enrich the functions of the house.
This is exactly what is taken away when a member is induced to vote in a certain way not because of their belief or position on an issue but because of a bribe taken by the member, it said.
"Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy. It is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive and representative democracy," the bench said.
The top court's 1998 verdict related to bribery involving five JMM MPs who accepted bribes to vote against the no-confidence motion threatening the minority P V Narasimha Rao government's survival in 1993. The motion was defeated with their help.
It had held in its majority verdict that parliamentarians have immunity against criminal prosecution for any speech made and vote cast inside the house under Articles 105(2) and 194(2).
The bench -- also comprising Justices A S Bopanna, M M Sundresh, P S Narasimha, J B Pardiwala, Sanjay Kumar and Manoj Misra -- said Articles 105 and 194 of the Constitution seek to create a fearless atmosphere in which debate, deliberations and exchange of ideas can take place within the houses of Parliament and the state legislatures.
"For this exercise to be meaningful, members and persons who have a right to speak before the house or any committee must be free from fear or favour induced into them by a third party," it said.
Articles 105 and 194 deal with the powers and privileges of MPs and MLAs in Parliament and the legislative assemblies respectively.
"A speech made in Parliament or legislature cannot be subjected to any proceedings before any court. However, other acts such as damaging property or criminal acts may be subjected to prosecution despite being within the precincts of the house," it said.
The CJI, who penned the unanimous verdict on behalf of the bench said the ability of a member to speak is essentially tethered to the collective functioning of the house and is necessary for the functioning of the house.
"A vote, which is an extension of the speech, may itself neither be questioned nor proceeded against in a court of law," the 135-page verdict said.
Article 105(2) says, "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."
The bench said in the 1998 verdict the majority judgment interprets the phrase "in respect of" (of Article 105(2)) as having a broad meaning and referring to anything that bears a nexus or connection with the vote given or speech made.
"It therefore concluded that a bribe given to purchase the vote of a member of Parliament was immune from prosecution under clause (2) of Article 105. By this logic, the majority judgment concluded that a bribe-accepting member who did not comply with the quid pro quo was not immune from prosecution as his actions ceased to have a nexus with his vote," the bench said.
It added that in the 1998 verdict the minority judgment points out the paradoxical result which would emerge if members were given immunity from prosecution for their speech or vote but would not be protected if the bribe was received for not speaking or not voting.
"The offence of bribery is complete on the acceptance of the money or on the agreement to accept money being concluded. The offence is not contingent on the performance of the promise for which money is given or is agreed to be given," the bench said, adding that this view of the minority was not dealt with in the majority verdict of 1998.
It said that privileges are not an end in themselves in a parliamentary form of government as the majority in 1998 verdict has understood them to be.
"A member of Parliament or of the legislature is immune in the performance of their functions in the House or a committee thereof from being prosecuted because the speech given or vote cast is functionally related to their performance as members of the legislature. The claim of a member to this immunity is its vital connect with the functioning of the house or committee," it said.
The CJI said the reason why the freedom of speech and to vote have been guaranteed in Parliament is because without that Parliament or the legislature cannot function.
"Therefore, the extent of privilege exercisable by a member individually must satisfy the two fold test laid down in this judgement namely its tether to the collective functioning of the house and its necessity," it said.
