Holding

A member of Parliament or a State Legislature is not entitled to immunity from prosecution for bribery under Articles 105(2) and 194(2); the majority view in *PV Narasimha Rao* is overruled.

Summary

The appellant, Sita Soren, a member of the Jharkhand Legislative Assembly, was charged under the Prevention of Corruption Act for allegedly accepting a bribe to vote for an independent candidate in a Rajya Sabha election, but she ultimately voted for her party's candidate. She sought to quash the charges invoking Article 194(2) of the Constitution, relying on the majority view in *PV Narasimha Rao* that parliamentary privilege shields legislators from prosecution for bribery related to their speech or vote. The Supreme Court, on a seven‑judge bench, examined whether the phrase “in respect of” in Articles 105(2) and 194(2) should be read as “arising out of” and whether such privilege is limited to functions essential to the legislature. The Court held that bribery is not covered by parliamentary privilege, that the majority view in *PV Narasimha Rao* is erroneous and overruled, and that voting in Rajya Sabha elections falls within the ambit of Article 194(2). Consequently, the appellant could not claim immunity and the criminal appeal was disposed.

Issues considered

Whether a member of Parliament or a State Legislature can claim immunity from prosecution for bribery under Articles 105(2) and 194(2) of the Constitution.
How the expression “in respect of” in Articles 105(2) and 194(2) should be interpreted – whether it means “arising out of” or a broader nexus.
Whether voting in Rajya Sabha elections is protected by Article 194(2).
Whether the doctrine of stare decisis permits the Court to overrule the majority judgment in *PV Narasimha Rao*.

Legislation cited

Constitution of Indias. Article 105(1), s. Article 105(2), s. Article 105(3), s. Article 105(4), s. Article 168, s. Article 174, s. Article 194(1), s. Article 194(2), s. Article 194(3), s. Article 194(4), s. Article 80, s. Section 15 of the Constitution (Forty‑fourth Amendment) Act, 1978
Prevention of Corruption Act, 1988s. Section 7

Subjects

Bribery for speaking or casting a voteBribery vis-à-vis privilegesParliamentary privilegeLegislative privilegeAncient privilegesStatutory privilegeConstitutional privilegeHistory of privileges of legislaturesImmunity of the Houses of Parliament or LegislatureReconsideration of PV Narasimha Rao caseProbity in public lifeParliamentary democracyPrinciple of stare decisisElections to Rajya SabhaOverruledJudicial precedentConstitutional jurisprudenceFreedom of speechHouse of Parliament

Judgment

[2024] 3 S.C.R. 462 : 2024 INSC 161

Sita Soren
v.
Union of India
(Criminal Appeal No. 451 of 2019)
04 March 2024
[Dr Dhananjaya Y Chandrachud,* CJI, A.S. Bopanna,
M. M. Sundresh, Pamidighantam Sri Narasimha,
J.B. Pardiwala, Sanjay Kumar and Manoj Misra, JJ.]

Issue for Consideration
Instant Reference pertains to reconsideration of the correctness
of the view of the majority judgment in *PV Narasimha Rao’s case
granting immunity from prosecution to a member of the legislature
who has allegedly engaged in bribery for speaking or casting a vote.

Headnotes
Constitution of India – Arts. 105 and 196 – Powers, privileges
and immunities of the Houses of Parliament or Legislature, as
the case may be, and of members and committees – Member of
Parliament or the Legislative Assembly, if can claim immunity
from prosecution on a charge of bribery in a criminal court –
Reconsideration of the correctness of the majority view in*PV
Narasimha Rao’s case which grants immunity from prosecution
to a member of the legislature who has allegedly engaged in
bribery for casting a vote or speaking:
Held: Judgment of the majority in *PV Narasimha Rao’s case
has wide ramifications on public interest, probity in public life and
parliamentary democracy – There is a grave danger of this Court
allowing an error to be perpetuated if decision not reconsidered
– Thus, said case not concurred with and overruled. [Para 188]
Constitution of India – Arts. 105 and 196 – Powers, privileges
and immunities of the Houses of Parliament or Legislature,
and of members and committees – Allegation against the
member of Legislative Assembly that she accepted bribe from
an independent candidate for casting her vote in his favour
in the Rajya Sabha elections, however, in an open ballot, she
did not cast her vote in favour of the alleged bribe giver but
her own party candidate – Chargesheet against the member –

* Author
[2024] 3 S.C.R. 463

Sita Soren v. Union of India

Petition for quashing of criminal charges, claiming protection
of Art.194(2), relying on *PV Narasimha Rao’s case that member
would enjoy immunity from prosecution for accepting bribe
for speaking or giving their vote in Parliament – Rejected by
the High Court – Matter before the Supreme Court where the
two-judge bench referred the matter to three-judge bench, who
further referred to five-judges bench – Bench of five-judges
doubted the correctness of *PV Narasimha Rao wherein the
majority judgment held that the legislator is conferred with
immunity when they accept bribe for speaking or giving their
vote in Parliament, whereas minority held that giving bribe
to influence legislator to vote or speak in Parliament, not
protected by Arts. 105(2) and 194(2), and referred the matter
to bench of seven judges:
Held: Interpretation placed on the issue in question in the judgment
of the majority in *PV Narasimha Rao’s case results in a paradoxical
outcome – Such an interpretation is contrary to the text and purpose
of Arts. 105 and 194 – Reconsidering *PV Narasimha Rao’s case
does not violate the principle of stare decisis – Members of the
House or indeed the House itself cannot claim privileges which are
not essentially related to their functioning – Constitution envisions
probity in public life – Corruption and bribery of members of the
legislature erode the foundation of the Parliamentary democracy
– Bribery is not protected by parliamentary privilege – Delivery of
result irrelevant to the offence of bribery – Voting for elections to
the Rajya Sabha falls within the ambit of Art. 194(2) – Thus, said
case not concurred with and overruled. [Paras D, G, I, 188]
Judicial Precedent – Overruling of the long-settled law in *PV
Narasimha Rao’s case, if warranted:
Held : Period of time over which the case has held the field is not
of primary consequence – It is not appropriate for this Court to
confine itself to a rigid understanding of the doctrine of stare decisis
– Ability of this Court to reconsider its decisions is necessary for
the organic development of law and the advancement of justice – If
this Court is denuded of its power to reconsider its decisions, the
development of constitutional jurisprudence would virtually come to
a standstill – Thus, reconsidering *PV Narasimha Rao’s case does
not violate the principle of stare decisis – *PV Narasimha Rao’s
case has wide ramifications on public interest, probity in public
life and the functioning of parliamentary democracy – It contains
several apparent errors, its interpretation of the text of Art. 105;
its conceptualization of the scope and purpose of parliamentary
464 [2024] 3 S.C.R.

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privilege and its approach to international jurisprudence all of
which resulted in a paradoxical outcome – There is an imminent
threat of allowing an error to be perpetuated if the decision in *PV
Narasimha Rao’s case is not reconsidered – Mistaken interpretation
of the Constitution, must not be perpetuted merely because of
rigid allegiance to a previous opinion of five judges of this Court.
[Paras 31, 33, 40, 44, 188.1]
Constitution of India – Arts. 105 and 194 – Parliamentary
privileges, if collective right of the house – Two constituent
elements of privileges:
Held: First is the sum of rights enjoyed by the House of Parliament
collectively and the second is the rights enjoyed by members
of the House individually – Rights and immunities such as the
power to regulate its own procedure, the power to punish for
contempt of the House or to expel a member, belong to the first
element of privileges held by the House as a collective body for
its proper functioning, protection of members, and vindication of
its own authority and dignity – Second element of rights exercised
individually by members of the House includes freedom of speech
and freedom from arrest, among others – Privilege exercised by
members individually is in turn qualified by its necessity, in that
the privilege must be such that “without which they could not
discharge their functions” – These privileges enjoyed by members
of the House individually are a means to ensure and facilitate
the effective discharge of the collective functions of the House
– Privileges enjoyed by members of the House which exceed
those possessed by other bodies or individuals, are not absolute
or unqualified – Thus, the privileges and immunities enshrined in
Arts. 105 and 194 belong to the House collectively – Exercise of
the privileges individually by members must be tested on the anvil
of whether it is tethered to the healthy and essential functioning
of the House. [Paras 76, 77, 84]
Constitution of India – Arts. 105 and 194 – Parliamentary
privileges – Necessity test to claim and exercise a privilege:
Held: Members of the House or indeed the House itself cannot
claim privileges which are not essentially related to their functioning
– Assertion of a privilege by an individual member of Parliament or
Legislature would be governed by a twofold test, first, the privilege
claimed has to be tethered to the collective functioning of the House,
and second, its necessity must bear a functional relationship to
the discharge of the essential duties of a legislator – Burden of
[2024] 3 S.C.R. 465

Sita Soren v. Union of India

satisfying that a privilege exists and that it is necessary for the
House to collectively discharge its function lies with the person or
body claiming the privilege – Houses of Parliament or Legislatures,
and the committees are not islands which act as enclaves shielding
those inside from the application of ordinary laws – Lawmakers
are subject to the same law that the law-making body enacts for
the people it governs and claims to represent. [Paras 87, 90, 91]
Constitution of India – Arts. 105 and 194 – Parliamentary
privilege – Privileges, if attract immunity to a member of
Parliament or of the Legislatures who engages in bribery in
connection with their speech or vote:
Held: Bribery is not protected by parliamentary privilege – Bribery
is not in respect of anything said or any vote given – Bribery is
not immune under clause (2) of Art.105 and Art.194 because a
member engaging in bribery commits a crime which is unrelated
to their ability to vote or to make a decision on their vote – Same
principle applies to bribery in connection with a speech in the
House or a Committee – Individual member of the legislature
cannot assert a claim of privilege to seek immunity u/Arts 105 and
194 from prosecution on a charge of bribery in connection with a
vote or speech in the legislature – Such a claim to immunity fails
to fulfil the twofold test that the claim is tethered to the collective
functioning of the House and that it is necessary to the discharge
of the essential duties of a legislator. [Para G, 188.4, 188.7]
Constitution of India – Arts. 105 and 194 – Parliamentary
privilege – Expression ‘in respect of’ and ‘anything’ in Clause
(2) of Art. 105 – Interpretation:
Held: Clause (2) of Art. 105 grants immunity “in respect of anything”
said or any vote given – Extent of this immunity must be tested
on the anvil of the test of intrinsic relation to the functioning of
the House and the necessity test – Phrase “in respect of” is
significant to delineate the ambit of the immunity granted under
Clause (2) of Art. 105 – Words “in respect of” in Clause (2)
apply to the phrase “anything said or any vote given,” and in the
latter part to a publication by or with the authority of the House
– Expressions “anything” and “any” must be read in the context
of the accompanying expressions in Arts 105(2) and 194(2) –
Words “anything” or “any” may not be interpreted without reading
the operative word on which it applies i.e. “said” and “vote given”
respectively – Words “anything” and “any” when read with their
respective operative words mean that a member may claim immunity
466 [2024] 3 S.C.R.

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to say as they feel and vote in a direction that they desire on any
matter before the House – These are absolutely outside the scope
of interference by the courts – Words “in respect of” means ‘arising
out of’ or ‘bearing a clear relation to’ and cannot be interpreted to
mean anything which may have even a remote connection with
the speech or vote given. [Paras 99, 102-103, 188.6]
Constitution of India – Arts. 105 and 194 – Power, privileges
and immunity in Parliament – Purpose and object:
Held: Constitution envisions probity in public life – Purpose and
object for which the Constitution stipulates powers, privileges
and immunity in Parliament must be borne in mind – Privileges
are essentially related to the House collectively and necessary
for its functioning – Hence, the phrase “in respect of” in Art. 105
must have a meaning consistent with the purpose of privileges
and immunities – Arts. 105 and 194 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 – Purpose is destroyed when a member is induced
to vote or speak in a certain manner not because of their belief/
position on an issue but because of an act of bribery – 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. [Paras 104, 188.5, 188.8]
Constitution of India – Arts. 105 and 194 – Parliamentary
privileges – Courts and the House, if exercise parallel
jurisdiction over allegations of bribery:
Held: Issue of bribery is not one of exclusivity of jurisdiction by
the House over its bribe-taking members – Purpose of a House
acting against a contempt by a member for receiving a bribe
serves a purpose distinct from a criminal prosecution – Jurisdiction
which is exercised by a competent court to prosecute a criminal
offence and the authority of the House to take action for a breach
of discipline in relation to the acceptance of a bribe by a member
of the legislature exist in distinct spheres – Scope, purpose and
consequences of the court exercising jurisdiction in relation to a
criminal offence and the authority of the House to discipline its
members are different – Potential of misuse against individual
members of the legislature is neither enhanced nor diminished by
recognizing the jurisdiction of the court to prosecute a member of
[2024] 3 S.C.R. 467

Sita Soren v. Union of India

the legislature who is alleged to have indulged in an act of bribery.
[Paras 188.9, 188.10]
Constitution of India – Arts. 105 and 194 – Parliamentary
privileges – Offence of bribery, stage at which it crystallizes:
Held: Offence of a public servant being bribed is pegged to receiving
or agreeing to receive the undue advantage and not the actual
performance of the act for which the undue advantage is obtained
– Delivery of results is irrelevant to the offence of bribery – To read
Arts. 105(2) and 194(2) in the manner proposed in the majority
judgment in PV Narasimha Rao’s case results in a paradoxical
outcome – Such an interpretation results in a situation where a
legislator is rewarded with immunity when they accept a bribe and
follow through by voting in the agreed direction – On the other hand,
a legislator who agrees to accept a bribe, but may eventually decide
to vote independently will be prosecuted – Such an interpretation
belies not only the text of Arts. 105 and 194 but also the purpose
of conferring parliamentary privilege on members of the legislature
– Offence of bribery is agnostic to the performance of the agreed
action and crystallizes on the exchange of illegal gratification – It
does not matter whether the vote is cast in the agreed direction
or if the vote is cast at all – Offence of bribery is complete at the
point in time when the legislator accepts the bribe – Prevention of
Corruption Act, 1988 – s. 7. [Paras 117, 126, 188.11]
Constitution of India – Arts. 105 and 194 – Parliamentary
privileges – Votes casted by elected members of the state
legislative assembly in an election to the Rajya Sabha, if
protected by Art. 194(2):
Held: Voting for elections to the Rajya Sabha falls within the
ambit of Art.194(2) – Text of Art. 194 consciously uses the term
‘Legislature’ instead of ‘House’ to include parliamentary processes
which do not necessarily take place on the floor of the House or
involve ‘lawmaking’ in its pedantic sense – Rajya Sabha or the
Council of States performs an integral function in the working of the
democracy and the role played by Rajya Sabha constitutes a part
of the basic structure of the Constitution – Role played by elected
members of the state legislative assemblies in electing members of
Rajya Sabha is significant and requires utmost protection to ensure
that vote is exercised freely and without fear of legal persecution
– Any other interpretation belies the text of Art.194(2) and the
purpose of parliamentary privilege – Protection Arts. 105 and 194
colloquially called “parliamentary privilege” and not “legislative
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privilege” – It cannot be restricted to only law-making on the floor
of the House but extends to other powers and responsibilities of
elected members, taking place in the Legislature or Parliament,
even when the House is not sitting. [Paras 180, 187]
Constitution of India – Art. 194 – Use of the term “Legislature”
instead of the “House of Legislature” at appropriate places
– Effect:
Held: It is evident from the drafting of the provision that the two
terms have not been used interchangeably – First limb of Art.
194(2) pertains to “anything said or any vote given by him in the
Legislature or any committee thereof” – However, in the second
limb, the phrase used is “in respect of the publication by or under
the authority of a House of such a Legislature of any report, paper,
votes, or proceedings” – There is a clear departure from the term
‘Legislature’ used in the first limb, to use the term “House of such a
Legislature” in the second limb of the provision – Provision creates
a distinction between the two – Terms “House of Legislature” and
“Legislature” have different connotations – “House of Legislature”
refers to the juridical body, which is summoned by the Governor
pursuant to Art. 174 – Term “Legislature”, on the other hand, refers to
the wider concept under Art. 168, comprising the Governor and the
Houses of the Legislature – Use of the phrase “in the Legislature”
instead of “House of Legislature” is significant. [Paras 174, 175.]
Constitution of India – Arts. 105, 194 – Parliamentary privilege
under:
Held: Is integral to deliberative democracy in facilitating the
functioning of a parliamentary form of governance – It ensures
that legislators in whom citizens repose their faith can express
their views and opinions on the floor of the House without ‘fear or
favour’ – Legislator belonging to a political party with a minuscule
vote share can fearlessly vote on any motion; a legislator from
a remote region of the country can raise issues that impact her
constituency without the fear of being harassed by legal prosecution;
and a legislator can demand accountability without the apprehension
of being accused of defamation. [Para 1]
Constitution of India – Art. 105, clause (1), (2), (3), (4) – Powers,
privileges, etc. of the Houses of Parliament and of the members
and committees thereof – Explanation:
Held: Clause (1) declares that there shall be freedom of speech
in Parliament, subject to the Constitution and to the rules and
[2024] 3 S.C.R. 469

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standing orders regulating the procedure in Parliament – First
limb of Clause (2) prescribes that a member of Parliament shall
not be liable before any court in respect of “anything said or any
vote given” by them in Parliament or any committee thereof and
second limb prescribes that no person shall be liable before any
court in respect of the publication by or under the authority of either
House of Parliament of any report, paper, vote or proceedings
– Clauses (1) and (2) explicitly guarantee freedom of speech in
Parliament – Clause (1) is a positive postulate which guarantees
freedom of speech whereas Clause (2) is an extension of the
same freedom postulated negatively – Clause (3) states that in
respect of privileges not falling under Clauses (1) and (2) of Art.
105, the powers, privileges and immunities, shall be such as may
from time to time be defined by Parliament by law – Clause (3)
allows Parliament to enact a law on its privileges from time to
time – Clause (4) extends the freedoms in the above clauses to
all persons who by virtue of the Constitution have a right to speak
in Parliament – Thus, four clauses in Arts. 105 and 194 form a
composite whole which lend colour to each other and together form
the corpus of the powers, privileges and immunities of the Houses
of Parliament or Legislature, and of members and committees.
[Paras 63-66, 73]
Parliamentary privileges – History of privileges of legislatures
in India:
Held: History can be traced to the history of parliamentary privileges
in the House of Commons in the UK as well as the struggle of
the Indian Legislatures to claim these privileges under colonial
rule – Unlike the House of Commons in the UK, India does not
have ‘ancient and undoubted’ privileges which were vested after
a struggle between Parliament and the King – Statutory privilege
transitioned to a constitutional privilege after the commencement
of the Constitution. [Paras 49, 188.2]
Parliamentary privileges – Bribery vis-à-vis privileges –
Jurisprudence in foreign jurisdictions – Evolution and position
of the law on privileges vis-a-vis bribe received by a member
of Parliament in other jurisdictions-United Kingdom, United
States of America, Canada, and Australia – Explained and
discussed. [Paras 128-167]
Prevention of Corruption Act, 1988 – s. 7 – Offence relating
to public servant being bribed – Offence of bribery, when
complete – Constituent elements of the offence:
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Held: Under s. 7, the 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
– It is not necessary that the act for which the bribe is given be
actually performed – First explanation to the provision strengthens
such an interpretation when it expressly states 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 – Thus, the offence of a
public servant being bribed is pegged to receiving or agreeing to
receive the undue advantage and not the actual performance of
the act for which the undue advantage is obtained. [Para 117]
Judicial review – Amenability – Claim to parliamentary
privilege :
Held: Claim to parliamentary privilege conforms to the parameters
of the Constitution, as such amenable to judicial review. [Para 188.3]
Judicial discipline – Procedure of:
Held: Decision delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or coequal strength
– A Bench of lesser strength cannot disagree with or dissent
from the view of the law taken by the bench of larger strength
– However, a bench of the same strength can question the
correctness of a decision rendered by a co-ordinate bench –
In such situations, the case is placed before a bench of larger
strength – In consonance with judicial discipline, the correctness
of the decision in PV Narasimha Rao’s case was only doubted
by the co-equal bench of five judges of this Court in a detailed
order and accordingly, the matter was placed before this bench
of seven judges – Thus, no infirmity in the reference to seven
judges bench to reconsider the decision in *PV Narasimha Rao’s
case. [Paras 24, 25, 30]
Doctrines/Principles – Doctrine of stare decisis – Meaning:
Held: Doctrine of stare decisis provides that the Court should not
lightly dissent from precedent – However, the doctrine is not an
inflexible rule of law, and it cannot result in perpetuating an error
to the detriment of the general welfare of the public – Larger bench
of this Court may reconsider a previous decision in appropriate
cases, bearing in mind the tests formulated in the precedents of
this Court – This Court may review its earlier decisions if it believes
that there is an error, or the effect of the decision would harm the
[2024] 3 S.C.R. 471

Sita Soren v. Union of India

interests of the public or if it is inconsistent with the legal philosophy
of the Constitution – In cases involving the interpretation of the
Constitution, this Court would do so more readily than in other
branches of law because not rectifying a manifest error would be
harmful to public interest and the polity. [Paras 33, 188.1]
Interpretation of Constitution – Interpretation of a provision
of the Constitution:
Held: Court must interpret the text in a manner that does not do
violence to the fabric of the Constitution. [Para 92]
Interpretation of Constitution – Marginal note to the Article
– Importance of:
Held: With reference to Articles of the Constitution, a marginal note
may be used as a tool to provide some clue as to the meaning and
purpose of the Article – However, the real meaning of the Article
is to be derived from the bare text of the Article – When language
of the Article is plain and ambiguous, undue importance cannot be
placed on the marginal note appended to it – Furthermore, marginal
note to a Section in a statute does not control the meaning of the
body of the Section if the language employed is clear. [Para 173]
Interpretation of statutes – Principles of statutory interpretation
– Illustrations appended to s. 7 of the Prevention of Corruption
Act – Relevance:
Held: Illustrations appended to a Section are of value and relevance
in construing the text of a statutory provision and they should not
be readily rejected as repugnant to the Section – Illustration to
the first explanation of s. 7 of the PC Act aids in construing the
provision to mean that the offence of bribery crystallizes on the
exchange of the bribe and does not require the actual performance
of the act – Similarly, in the formulation of a legislator accepting a
bribe, it does not matter whether she votes in the agreed direction
or votes at all – At the point in time when the bribe is accepted,
the offence of bribery is complete – Prevention of Corruption Act,
1988. [Para 118]

Case Law Cited
*PV Narasimha Rao v. State (CBI/SPE), [1998] 2 SCR
870 : (1998) 4 SCC 626 – overruled.
Kuldip Nayar v. Union of India, [2006] 5 Suppl. SCR 1 :
(2006) 7 SCC 1 – Clarified.
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[2024] 3 S.C.R. 473

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Parte Wason, (1969) 4 QB 573; R v. Greenway, [1998]
PL 357; R v. Parliamentary Commissioner for Standards
Ex Parte Fayed, [1998] 1 WLR 669; Hamilton v. Al
Fayed, [2001] 1 A.C. 395; Prebble v. Television New
Zealand, (1994) 3 ALL ER 407; Office of Government
Commerce v. Information Commissioner (Attorney
General intervening), [2009] 3 WLR 627; R v. Chaytor,
[2010] 3 WLR 1707; Makudi v. Baron Triesman of
Trottenham, [2014] QB 839; United States v. Thomas F
Johnson, 383 US 169 (1966); United States v. Brewster,
408 US 501 (1972); Gavel v. United States, 408 US
606 (1972); United States v. Helstoski, 442 US 477
(1979); Hutchinson v. Proxmire, 439 US 1066 (1979); R
v. Bunting et al, 6 [1885] 17 O.R. 524; Canada (House
of Commons) v. Vaid [2005] 1 SCR 667; Chagnon v.
Syndicat de la fonction publique et parapublique du
Québe, [2018] 2 S.C.R. 687; R v. Edward White, 13
SCR (NSW) 332; R v. Boston, (1923) 33 CLR 386;
Obeid v. Queen, [2017] NSWCCA 221 – referred to.

Books and Periodicals Cited
SK Nag, Evolution of Parliamentary Privileges in India
till 1947, Sterling Publication, (1978), 317-18; SK
Nag, Evolution of Parliamentary Privileges in India
till 1947, Sterling Publication, (1978), 102-103; SK
Nag, Evolution of Parliamentary Privileges in India till
1947, Sterling Publication, (1978), 139-141, 158; SK
Nag, Evolution of Parliamentary Privileges in India
474 [2024] 3 S.C.R.

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till 1947, Sterling Publication, (1978), 322; Report of
the Reforms Enquiry Committee (1924), 75; SK Nag,
Evolution of Parliamentary Privileges in India till 1947,
Sterling Publication, (1978), 213-214; Granville Austin,
The Indian Constitution: Cornerstone of a Nation, OUP
(1972), ix; Granville Austin, The Indian Constitution:
Cornerstone of a Nation, OUP (1972), xiii; CAD Vol VIII
19 May, 1949 Draft Article 85; Subhash C. Kashyap,
Parliamentary Procedure—Law, Privileges, Practice and
Precedents, 3rd ed., Universal Law Publishing Co, 502;
MN Kaul and SL Shakdher, Practice and Procedure of
Parliament, Lok Sabha Secretariat, Metropolitan Book
Co. Pvt. Ltd., 7th ed., 229; Justice GP Singh, Principles
of Statutory Interpretation, 15th Ed. (2021), 136; Justice
GP Singh, Principles of Statutory Interpretation, 15th
Ed. (2021), 188-189 – referred to.
Erskine May’s Treatise on the Law, Privileges,
Proceedings and Usage of Parliament, LexisNexis,
25th ed. (2019) 239; Erskine May’s Treatise on the
Law, Privileges, Proceedings and Usage of Parliament,
LexisNexis, 25th ed. (2019) 242 – referred to.

List of Acts
Constitution of India; Prevention of Corruption Act, 1988;
Government of India Act, 1833; Charter Act, 1853; Indian Council
Act, 1861; Government of India Act, 1909; Representation of the
People Act, 1951; Government of India Act, 1919; Government of
India Act, 1935; Constitution (Forty-fourth Amendment) Act, 1978.

List of Keywords
Bribery for speaking or casting a vote; Bribery vis-à-vis privileges;
Parliamentary privilege; Legislative privilege; Ancient privileges;
Statutory privilege; Constitutional privilege; History of privileges of
legislatures; Immunities of the Houses of Parliament or Legislature;
Reconsideration of PV Narasimha Rao case; Probity in public life;
Parliamentary democracy; Principle of stare decisis; Elections
to Rajya Sabha; Overruled; Judicial Precedent; Constitutional
jurisprudence; Freedom of speech; House of Parliament; Necessity
test; Collective functioning of the House; Immunity “in respect of
anything” said or any vote given; Parallel jurisdiction; House of
Legislature; Legislature; Colonial rule; House of Commons in the
[2024] 3 S.C.R. 475

Sita Soren v. Union of India

UK; Foreign jurisdictions; Obtaining, accepting or attempting to
obtain an undue advantage; Judicial review; Judicial discipline;
Illustrations appended to a Section; Marginal note to a Section;
Reforms of Committee, 1924.

Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.451
of 2019
From the Judgment and Order dated 17.02.2014 of the High Court
of Jharkhand at Ranchi in WPCRL No.128 of 2013
Appearances for Parties
Paramjit Singh Patwalia, Sr. Adv.(Amicus Curiae), Ms. Harshika
Verma, Dipanshu Krishnan, Gauravjit Singh Patwalia, Manan Daga,
Ms. Samradhi Srivastava, Gaurav Agrawal, Advs.
Raju Ramachandran, Sr. Adv., Kaushik Laik, Vivek Singh, Ashay
Kaushik, M.V. Mukunda, Shashank Tiwari, Rahul Arya, Pratap
Shankar, Ms. Devyani Gupta, Ms. Tanvi Anand Advs. for the Appellant.
R Venkataramani, Attorney General for India, Tushar Mehta, Solicitor
General, K M Nataraj, A.S.G., K Parmeshwar, Kanu Agrawal, Ms.
Chinmayee Chandra, Udai Khanna, Akshay Amritanshu, Ankur
Talwar, Anmol Chandan, Anandh Venkataramani, Mrs. Vijayalakshmi
Venkataramani, Vinayak Mehrotra, Ms. Mansi Sood, Chitvan Singhal,
Ms. Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Kartikey
Aggarwal, Arvind Kumar Sharma, Advs. for the Respondent.
Gopal Sankaranarayan, Vijay Hansaria, Sr. Advs., Ashwini Kumar
Upadhyay, Ashwani Kumar Dubey, Vishal Sinha, Ms. Jhanvi Dubey,
Ms. Tanya Shrivastava, Ms. Aditi Gupta, Ms. Trisha Chandran, Vaibhav
Tiwari, Rishabh Shukla, Ms. Sneha Kalita, Ms. Kavya Jhawar, Ms.
Jessy Kurian, K.S. Bhati, Ms. SR. Leona, Ms. Shilpa Bagade, Ms.
Joyshree Barman, Shubham Singhal, Abhimanyu Bhandari, Ms.
Rooh-e-hina Dua, Arav Pandit, Harshit Khanduja, Ms. Dhanakshi
Gandhi, Sahib Kochhar, Ms. Shreya Arora, Randeep Sachdeva,
Dr. Vivek Sharma, K.V. Dhananjay, A Velan, Pawan Shyam, Ms.
Navpreet Kaur, Sushant VA, Ojaswi, Dheeraj SJ, Mritunjay Pathak,
Sachin S, Anand Nandan, Amit Pawan, Aakash, Zubair, Vikash, Dr.
Dhruv Mishra, Mohd Faiz, Ms. Shivangi, Rameshwar Prasad Goyal,
Advs. for the Intervenor/Impleadors.
476 [2024] 3 S.C.R.

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Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents*
A. Reference 4
B. Overview of the judgment in PV Narasimha Rao 8
C. Submissions 14
D. Reconsidering PV Narasimha Rao does not
violate the principle of stare decisis 22
E. History of parliamentary privilege in India 34
F. Purport of parliamentary privilege in India 44
I. Functional analysis 44
II. Parliamentary privilege as a collective
right of the House 54
III. Necessity test to claim and exercise a privilege 60
G. Bribery is not protected by parliamentary privilege 65
I. Bribery is not in respect of anything
said or any vote given 65
II. The Constitution envisions probity in public life 72
III. Courts and the House exercise parallel
jurisdiction over allegations of bribery 76
IV. Delivery of results is irrelevant to the
offence of bribery 79
H. International position on bribery vis-à-vis privileges 87
I. United Kingdom 87
II. United States of America 99
III. Canada 108
IV. Australia 114
I. Elections to the Rajya Sabha are within the
remit of Article 194(2) 118
J. Conclusion 131

* Ed. Note: Pagination is as per the original Judgment.
[2024] 3 S.C.R. 477

Sita Soren v. Union of India

1. Parliamentary privilege, codified in Articles 105 and 194 of the
Constitution, is integral to deliberative democracy in facilitating the
functioning of a parliamentary form of governance. It ensures that
legislators in whom citizens repose their faith can express their views
and opinions on the floor of the House without ‘fear or favour’. With
the protection of parliamentary privilege, a legislator belonging to a
political party with a minuscule vote share can fearlessly vote on any
motion; a legislator from a remote region of the country can raise
issues that impact her constituency without the fear of being harassed
by legal prosecution; and a legislator can demand accountability
without the apprehension of being accused of defamation.
2. Would a legislator who receives a bribe to cast a vote in a certain
direction or speak about certain issues be protected by parliamentary
privilege? It is this question of constitutional interpretation that this
Court is called upon to decide.
A. Reference
3. The Criminal Appeal arises from a judgment dated 17 February 2014
of the High Court of Jharkhand.1 An election was held on 30 March
2012 to elect two members of the Rajya Sabha representing the
State of Jharkhand. The appellant, belonging to the Jharkhand Mukti
Morcha,2 was a member of the Legislative Assembly of Jharkhand.
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 annulled and a
fresh election was held where the appellant voted in favour of the
candidate from her own party again.
4. The appellant moved the High Court to quash the chargesheet and
the criminal proceedings instituted against her. The appellant claimed
protection under Article 194(2) of the Constitution, relying on the
judgment of the Constitution bench of this Court in PV Narasimha

1 Writ Petition (Criminal) No 128 of 2013
2 “JMM”
478 [2024] 3 S.C.R.

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Rao v. State (CBI/SPE)3. The High Court 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). The High Court’s reasoning
primarily turned on this Court’s decision in PV Narasimha Rao
(supra). The controversy in PV Narasimha Rao (supra) and the
present case turns on the interpretation of the provisions of Article
105(2) of the Constitution (which deals with the powers, privileges,
and immunities of the members of Parliament and Parliamentary
committees) and the equivalent provision in Article 194(2) of the
Constitution which confers a similar immunity to the members of
the State Legislatures.
5. On 23 September 2014, a bench of two judges of this Court,
before which the appeal was placed, was of the view that since the
issue arising for consideration is “substantial and of general public
importance”, it must be placed before a larger bench of three judges
of this court. On 7 March 2019, a bench of three judges which heard
the appeal observed that the precise question was dealt with in a
judgment of a five-judge bench in PV Narasimha Rao (supra). The
bench 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”, the matter must be referred
to a larger bench.
6. Finally, by an order dated 20 September 2023, a five-judge bench of
this Court recorded prima facie reasons doubting the correctness of
the decision in PV Narasimha Rao (supra) and referred the matter
to a larger bench of seven judges. The operative part of the order
reported as Sita Soren v. Union of India4, is extracted below:
“24. We are inclined to agree …that the view which has been
expressed in the decision of the majority in PV Narasimha
Rao requires to be reconsidered by a larger Bench. Our
reasons prima facie for doing so are formulated below:
Firstly, the interpretation of Article 105(2) and the
corresponding provisions of Article 194(2) of the Constitution

3 [1998] 2 SCR 870 : (1998) 4 SCC 626
4 [2023] 12 SCR 753 : 2023 SCC OnLine SC 1217
[2024] 3 S.C.R. 479

Sita Soren v. Union of India

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 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;
Secondly, in the course of judgment in PV Narasimha
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 the
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
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
480 [2024] 3 S.C.R.

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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.
…
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 Narasimha Rao should be reconsidered
by a larger Bench of seven judges.”
7. The scope of the present judgment is limited to the reference made
by the order of this Court dated 20 September 2023 doubting
the correctness of PV Narasimha Rao (supra). The merits of the
appellant’s case and whether she committed the alleged offence are
not being adjudicated by this Court at this stage. Nothing contained
in this judgment may be construed as having a bearing on the merits
of the trial or any other proceedings arising from it.
B. Overview of the judgment in PV Narasimha Rao
8. The general elections for the Tenth Lok Sabha were held in 1991.
Congress (I) emerged as the single largest party and formed a
minority government with Mr PV Narasimha Rao as the Prime
Minister. A motion of no-confidence was moved in the Lok Sabha
against the government. The support of fourteen members was
needed to defeat the no-confidence motion. The motion was defeated
with two hundred and fifty-one members voting in support and two
hundred and sixty-five members voting against the motion. A group
of Members of Parliament5 owing allegiance to the JMM and the

5 “MP”
[2024] 3 S.C.R. 481

Sita Soren v. Union of India

Janata Dal (Ajit Singh) Group6 voted against the no-confidence
motion. Notably, one MP belonging to the JD (AS), namely, Ajit
Singh, abstained from voting.
9. A complaint was filed before the Central Bureau of Investigation7
alleging that a criminal conspiracy was devised by which the above
members belonging to the JMM and the JD (AS) entered into an
agreement and received bribes to vote against the no-confidence
motion.8 It was alleged that PV Narasimha Rao and several other MPs
were parties to the criminal conspiracy and passed on “several lakhs
of rupees” to the alleged bribe-takers to defeat the no-confidence
motion.9
10. A prosecution was launched against the alleged bribe-givers and
bribe-takers, and cognizance was taken by the Special Judge, Delhi.
The accused moved the High Court of Delhi to quash the charges.
The High Court dismissed the petitions. Appeals were preferred
to this Court and culminated in the PV Narasimha Rao (supra)
decision. Two major questions came up for consideration before
the Court. First, whether by virtue of Article 105 of the Constitution,
an MP can claim immunity from prosecution on a charge of bribery
in a criminal court. Second, whether an MP falls within the purview
of the Prevention of Corruption Act, 1988, and who is designated
as the sanctioning authority for the prosecution of an MP under the
PC Act. In the present judgment, we are concerned solely with the
holding of the five-judge bench on the first question, i.e., the scope
of the immunity from prosecution under Article 105(2) when an MP
is charged with bribery.
11. Three opinions were authored in the case – by SC Agarwal, J (for
himself and Dr AS Anand, J), SP Bharucha, J (for himself and S
Rajendra Babu, J) and an opinion by GN Ray, J.
12. Justice SP Bharucha (as the learned Chief Justice then was) held
that the alleged bribe-takers who cast their vote against the no-
confidence motion enjoyed immunity from prosecution in a court
of law under Article 105(2) of the Constitution. However, Ajit Singh

6 “JD (AS)”
7 “CBI”
8 “Bribe-takers”
9 “Bribe-givers”
482 [2024] 3 S.C.R.

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(who abstained from voting) and the alleged bribe-givers were
held not to enjoy the same immunity. Justice Bharucha held that
for breach of parliamentary privileges and its contempt, Parliament
may proceed against both the alleged bribe-takers and bribe-givers.
Justice Bharucha held:
12.1. The provisions of Article 105(1) and Article 105(2) suggest that
the freedom of speech for MPs is independent of the freedom
of speech and its exceptions contained in Article 19. MPs must
be free of all constraints about what they say in Parliament.
A vote is treated as an extension of speech and is given the
protection of the spoken word;
12.2. The expression “in respect of” in Article 105(2) must receive
a “broad meaning” and entails that an MP is protected from
any proceedings in a court of law that relate to, concern or
have a connection or nexus with anything said or a vote given
by him in Parliament;
12.3. The alleged bribe-takers are entitled to immunity under Article
105(2) as the alleged conspiracy and acceptance of the bribe
was “in respect of” the vote against the no-confidence motion.
The stated object of the alleged conspiracy and agreement
was to defeat the no-confidence motion and the alleged bribe-
takers received the bribe as a “motive or reward for defeating”
it. The nexus between the alleged conspiracy, the bribe and
the no-confidence motion was explicit;
12.4. The object of the protection under Article 105(2) is to enable
MPs to speak and vote freely in Parliament, without the fear of
being made answerable on that account in a court of law. It is
not enough that MPs should be protected against proceedings
where the cause of action is their speech or vote. To enable
them to participate freely in parliamentary debates, MPs need
the wider protection of immunity against all civil and criminal
proceedings that bear a nexus to their speech or vote. It is not
difficult to envisage an MP who has made a speech or cast
a vote that is not to the “liking of the powers that be” being
troubled by legal prosecution alleging that he had been paid
a bribe to achieve a certain result in Parliament;
12.5. The seriousness of the offence committed by the bribe-takers
does not warrant a narrow construction of the Constitution.
[2024] 3 S.C.R. 483

Sita Soren v. Union of India

Such a construction runs the risk of impairing the guarantee
of an effective parliamentary democracy;
12.6. The immunity under Article 105(2) is operative only insofar
as it pertains to what has been said or voted. Therefore, Ajit
Singh, the MP who abstained from voting, was not protected
by immunity and the prosecution against him would proceed;
12.7. With regard to whether the bribe-givers enjoy immunity, since
the prosecution against Ajit Singh would proceed, the charge
against the bribe-givers of conspiracy and agreeing with Ajit
Singh to do an unlawful act would also proceed. Further, Article
105(2) does not provide that what is otherwise an offence is
not an offence when it is committed by an MP. The provision
merely provides that an MP shall not be answerable in a
court of law for something that has a nexus to his speech or
vote in Parliament. Those who have conspired with the MP in
the commission of that offence have no such immunity. The
bribe-givers can, therefore, be prosecuted and do not have
the protection of Article 105(2).
13. On the other hand, SC Agarwal, J held that neither the alleged bribe-
takers nor the alleged bribe-givers enjoyed the protection of Article
105(2). An MP does not enjoy immunity under Article 105(2) from
being prosecuted for an offence involving the offer or acceptance of a
bribe for speaking or giving his vote in parliament or any committee.
In his opinion, Justice Agarwal held as follows:
13.1. The object of the immunity under Article 105(2) is to ensure
the independence of legislators for the healthy functioning of
parliamentary democracy. An interpretation of Article 105(2)
which enables an MP to claim immunity from prosecution for
an offence of bribery would place them above the law. This
would be repugnant to the healthy functioning of parliamentary
democracy and subversive of the rule of law;
13.2. 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 been
made or a vote that has already been given and does not
extend to cases where the speech has not been made or the
vote has not been cast. Therefore, interpreting the expression
“in respect of” widely would result in a paradoxical situation. An
484 [2024] 3 S.C.R.

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MP would be liable to be prosecuted for bribery if he accepted
a bribe for not speaking or not giving his vote on a matter, but
he would enjoy immunity if he accepted the bribe for speaking
or giving his vote in a particular way and actually speaks or
gives his vote in that manner. It is unlikely that the framers of
the Constitution intended to make such a distinction;
13.3. The phrase “in respect of” must be interpreted to mean “arising
out of”. Immunity under Article 105(2) is available only to give
protection against liability for an act that follows or succeeds
as a consequence of making the speech or giving of vote by
an MP and not for an act that precedes the speech or vote
and gives rise to liability which arises independently of the
speech or vote;
13.4. The offence of criminal conspiracy is made out on the
conclusion of an agreement to commit the offence of bribery
and the performance of the act pursuant to the agreement
is not of any consequence. Similarly, the act of acceptance
of a bribe for speaking or giving a vote against the motion
arises independently of the making of the speech or giving
of the vote by the MP. Hence, liability for the offence cannot
be treated as “in respect of anything said or any vote given
in Parliament;” and
13.5. The international trend, including law in the United States,
Australia and Canada, reflects the position that legislators
are liable to be prosecuted for bribery in connection with their
legislative activities. Most of the Commonwealth countries
treat corruption and bribery by members of the legislature
as a criminal offence. In the United Kingdom also there is a
move to change the law in this regard. There is no reason why
legislators in India should not be covered by laws governing
bribery and corruption when all other public functionaries are
subject to such laws.
14. GN Ray, J in a separate opinion concurred with the reasoning of
Agarwal, J that an MP is a public servant under the PC Act and on
the question regarding the sanctioning authority under the PC Act.
However, on the interpretation of Article 105(2), GN Ray, J concurred
with the judgment of Bharucha, J. Hence, the opinion authored by
Bharucha, J on the interpretation of Article 105(2) represents the
[2024] 3 S.C.R. 485

Sita Soren v. Union of India

view of the majority of three judges of this Court.10 The opinion
authored by SC Agarwal, J on the other hand, represents the view
of the minority.11
C. Submissions
15. Over the course of the hearing, we have heard Mr Raju Ramachandran,
senior counsel appearing on behalf of the appellant, Mr R
Venkataramani, Attorney General for India, Mr Tushar Mehta, Solicitor
General of India, Mr PS Patwalia, senior counsel, amicus curiae,
Mr Gopal Sankarnarayanan, senior counsel, and Mr Vijay Hansaria,
senior counsel, appearing on behalf of intervenors. This Court being
a court of record, the submissions made by the learned advocates
are briefly listed below.
16. Mr Raju Ramachandran, senior counsel appearing on behalf of the
appellant submitted that the judgment of the majority in PV Narasimha
Rao (supra) is squarely applicable to the present case. Further, he
argued that the majority judgment is well-reasoned and there are
no grounds to reconsider the settled position of law. In this regard,
he made the following submissions:
16.1. The overruling of long-settled law in PV Narasimha Rao
(supra) is unwarranted according to the tests laid down by
this court on overturning judicial precedents;12
16.2. The object behind conferring immunity on MPs and MLAs was
to shield them from “being oppressed by the power of the
crown”. The apprehension of parliamentarians being arrested
shortly before or after the actual voting or making of a speech
in the Parliament (such vote or speech directed against the
Executive) was the precise reason for introducing the concept
of privileges and immunities;
16.3. The concept of constitutional privileges and immunities is not
in derogation of the Rule of Law, but it is a distinct feature of
our constitutional structure. The majority judgment preserves

10 The opinion authored by SP Bharucha, J has been referred to as majority judgment hereinafter
11 The opinion authored by SC Agarwal, J has been referred to as minority judgment hereinafter
12 Keshav Mills Co. Ltd v. CIT, [1965] 2 SCR 908 : AIR 1965 SC 1636, para 23; Krishena Kumar v. Union
of India, [1990] 3 SCR 352 : (1990) 4 SCC 207, para 33; Shanker Raju v. Union of India, [2011] 2 SCR 1:
(2011) 2 SCC 132, para 10; Shah Faesal and Ors. v. Union of India (UOI), [2020] 3 SCR 1115 : (2020) 4
SCC 1, para 17
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the privilege of MPs and MLAs to protect their dignity as
legislators and is not opposed to the rule of law;
16.4. The majority judgment gave due regard and recognition
to Parliament’s exclusive powers to take appropriate
steps against corrupt practices by its members, just as
the Parliament recognizes the limits on discussions in the
House, such as the inability to entertain discussions on the
conduct of judges of constitutional courts under Article 121
of the Constitution;
16.5. The present position on parliamentary privilege in India and the
UK entails that (a) it is fundamental to a democratic polity and
courts have exercised judicial restraint; and (b) the privilege
must necessarily relate to the exercise of “legislative functions”,
which in India relates to voting and making of speeches. While
determining whether an act is immune from judicial scrutiny,
the ‘necessity test’ is to be applied, i.e., whether there is a
nexus between the act in question and the legislative process
of voting/making speeches;
16.6. The so-called “anomaly” in the majority judgment flows from
the plain language of Articles 105(2) and 194(2) and any
attempt to whittle down their protective scope to adhere to
what is seemingly “logical”, “fair” or “reasonable” would be
constitutionally unjustified. However, while advancing his oral
submissions in rejoinder, Mr Ramachandran conceded that the
view that an abstention from voting would not be protected
under Article 105(2) was incorrect and abstaining from voting,
in fact, constitutes casting a vote;
16.7. The minority judgment in PV Narasimha Rao (supra) has
erred in reading “in respect of” as “arising out of”. Such a
reading is not warranted by either the plain language or the
intent of the provision;
16.8. The fact that the offence of bribery in criminal law is complete
when the bribe is given and is not dependent on the
performance of the promised favour is of no consequence to
the constitutional immunity under Articles 105(2) and 194(2).
Once a speech is made or a vote is given, the nexus, i.e., “in
respect of”, is fulfilled;
[2024] 3 S.C.R. 487

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16.9. The overruling of the majority judgment will have severe
unintended consequences. In view of political realities, if the
parliamentary immunity conferred upon MPs/ MLAs is whittled
down, it would enhance the possibility of abuse of the law by
political parties in power; and
16.10. Voting in the Rajya Sabha Elections is within the scope of
protection of Article 194(2) as it has all the “trappings” of any
other law-making process in the legislature.
17. Mr Venkataramani, the learned Attorney General for India advanced
a preliminary submission that the decision in PV Narasimha Rao
(supra) is inapplicable to the instant case. He submitted that the
exercise of franchise by an elected member of the legislative assembly
in a Rajya Sabha election does not fall within the ambit of Article
194(2), and thus, PV Narasimha Rao (supra) does not have any
application to the present case. He submits that the objective of Article
194(2) is to protect speech and conduct in relation to the functions
of the legislature. Therefore, any conduct which is not related to
legislative functions, such as the election of members to the Rajya
Sabha, will fall outside the ambit of Article 194(2). According to the
learned Attorney General, the election of members to the Rajya
Sabha is akin to any other election process and cannot be treated
as a matter of business or function of the legislature.
18. In response to the learned Attorney General’s submissions that the
polling for Rajya Sabha cannot be considered a proceeding of the
House, Mr Ramachandran has submitted that the cases relied on by
the learned Attorney General were not rendered in a context where
parliamentary privilege or immunity was sought to be invoked and
the passing reference to the concept of ‘legislative proceedings’ was
in an entirely different context. Further, certain legislative processes
such as ad-hoc committees, standing committees, elections of the
constitutional offices of the President/Vice President, and members
of the Rajya Sabha, do not necessarily take place on the floor of the
House when it is in session. However, they have all the ‘trappings’
of carrying out the ‘legislative process’.
19. Mr P S Patwalia, amicus curiae has submitted that the majority
judgment must be reconsidered, and the view of the minority reflects
the correct position of law. In this regard, Mr Patwalia made the
following submissions:
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19.1. The majority judgment has erroneously given a wide
interpretation to the expression “in respect of” and granted
immunity to MPs from criminal prosecution when they accept
a bribe to cast a vote in Parliament. The object of Article
105 is not to place MPs above the law when the offence
has been committed before the MP enters the House of
Parliament;
19.2. The ratio of the judgments of this court rendered after PV
Narasimha Rao (supra) militates against the grant of immunity
to MPs for taking a bribe for casting votes;13
19.3. The minority judgment correctly notes that the offence of bribery
is complete before the member even enters the House and
therefore, the offence has no connection or correlation with
the vote that she may cast in Parliament. The protection under
Articles 105(2) and 194(2) is not available when the alleged
criminal acts are committed outside Parliament;
19.4. The proposition that MPs are immune from prosecution for an
offence of bribery in connection with their votes in Parliament
is subversive of the rule of law;
19.5. The majority judgment results in an anomalous situation, where
an MP who accepts a bribe and does not cast his vote can
be prosecuted, while a member who casts his vote is given
immunity;
19.6. The position of law in the United Kingdom, as developed over
the years, confirms the proposition that the claim of privilege
cannot be extended to immunity from prosecution for the
offence of bribery; and
19.7. The international trend (particularly in the United States,
Canada and Australia) is that parliamentary privilege does not
extend to the offence of bribery. This trend is correctly relied
on in the minority judgment, while the majority judgment relies
on decisions which have been subsequently diluted even in
their original jurisdictions.

13 Raja Ram Pal v. Hon’ble Speaker Lok Sabha, [2007] 1 SCR 317 : (2007) 3 SCC 184, Lokayukta, Justice
Ripusudan Dayal v. State of M.P. [2014] 3 SCR 242 : (2014) 4 SCC 473 and State of Kerala v. K. Ajith,
[2021] 6 SCR 774 : (2021) SCC OnLine 510
[2024] 3 S.C.R. 489

Sita Soren v. Union of India

20. Mr Gopal Sankarnarayan, senior counsel appearing on behalf of the
intervenor endorsed the view taken by the amicus curiae. Additionally,
he made the following submissions:
20.1. While the majority judgment has been doubted on multiple
occasions, the minority judgment has been extensively relied
on by this Court;
20.2. The word “any” employed in Articles 105 and 194 of the
Constitution ought to be given a narrow interpretation and
should not mechanically be interpreted as ‘everything’,
especially as it grants an exceptional immunity not available
to the common person;
20.3. The expression “in respect of” must be read narrowly. It
must be tied down to ‘legitimate acts’ that are a part of the
legislative process involving speech or a vote in Parliament
or before a committee. Any other interpretation would violate
the sanctity of the democratic process and the trust placed in
the legislators by the public;
20.4. Strict interpretation ought to be given to laws dealing with
corruption which affects the public interest;
20.5. The offence of bribery is complete on receipt of the bribe well
before the vote is given or speech is made in Parliament. The
offence under Section 7 (and Section 13) of the PC Act does
not require ‘performance’. Therefore, the delivery of results is
irrelevant to the offence being established and the distinction
created by the majority is artificial;
20.6. The effect of the majority judgment is that it creates an
illegitimate class of public servants which is afforded
extraordinary protection which would be a violation of Article
14, as also being manifestly arbitrary; and
20.7. Internationally, the legal position in the USA, UK, Canada,
Australia, South Africa and New Zealand supports the minority
judgment.
21. Mr Tushar Mehta, the learned Solicitor General of India highlighted
the significance of preserving parliamentary privileges. He submitted
that the issue for consideration before this Court is not the contours
of parliamentary privileges but whether the offence of bribery is
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complete outside the legislature. Mr Mehta submitted that the
offence of bribery under the PC Act, both before and after the 2018
amendment, is complete on the acceptance of the bribe and is not
linked to the actual performance or non-performance of the official
function to which the bribe relates.
22. Mr Vijay Hansaria, Senior Advocate appearing on behalf of the
intervenor, supplemented the arguments assailing the majority
judgment. He submitted that the principle of parliamentary privilege
must be interpreted in the context of the criminalization of politics and
through the prism of constitutional morality. In his written submissions,
Mr A Velan, Advocate for the intervenor supported the submission
that the majority judgment in PV Narasimha Rao (supra) ought to
be reconsidered.
D. Reconsidering PV Narasimha Rao does not violate the
principle of stare decisis
23. We begin by addressing the preliminary argument of Mr Raju
Ramachandran, that overruling of the long-settled law in PV Narasimha
Rao (supra) is unwarranted by the application of the tests laid down
by this Court on overturning judicial precedent. The order of reference
provides reasons for prima facie doubting the correctness of the
decision in PV Narasimha Rao (supra) including its impact on the
“polity and the preservation of probity in public life.” However, since
the learned Senior Counsel has reiterated the preliminary objection
to reconsidering the decision in PV Narasimha Rao (supra) before
this bench of seven judges, the argument has been addressed below.
24. A decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or coequal strength. A Bench of lesser
strength cannot disagree with or dissent from the view of the law
taken by the bench of larger strength. However, a bench of the same
strength can question the correctness of a decision rendered by a
co-ordinate bench. In such situations, the case is placed before a
bench of larger strength.14
25. In the present case, the case was first placed before a bench of
two judges who referred the case to a bench of three judges. The

14 Central Board of Dawoodi Bohra Community vs. State of Maharashtra, [2004] Suppl. 6 SCR 1054 :
(2005) 2 SCC 673, para 12
[2024] 3 S.C.R. 491

Sita Soren v. Union of India

bench of three judges referred the case to a bench of five judges. In
consonance with judicial discipline, the correctness of the decision
in PV Narasimha Rao (supra) was only doubted by the co-equal
bench of five judges of this Court in a detailed order. Accordingly,
the matter has been placed before this bench of seven judges.
26. Doubts about the correctness of the decision in PV Narasimha Rao
(supra) have been raised by this Court in several previous decisions
as well. For instance, in Kalpana Mehta v. Union of India,15 one of
us (D.Y. Chandrachud, J) observed:
“221. The view of the minority was that the offence of
bribery is made out against a bribe-taker either upon
taking or agreeing to take money for a promise to act in
a certain manner. Following this logic, S.C. Agrawal, J.
held that the criminal liability of a Member of Parliament
who accepts a bribe for speaking or giving a vote in
Parliament arises independent of the making of the speech
or the giving of the vote and hence is not a liability “in
respect of anything said or any vote given” in Parliament.
The correctness of the view in the judgment of the
majority does not fall for consideration in the present
case. Should it become necessary in an appropriate
case in future, a larger Bench may have to consider
the issue.”
(emphasis supplied)
27. Similar observations have been made by this Court in Raja Ram
Pal v. Hon’ble Speaker, Lok Sabha.16 The Court has relied on the
minority judgment in several decisions, notably Kuldip Nayar v.
Union of India.17 and Amarinder Singh v. Punjab Vidhan Sabha.18
As the correctness of the decision in PV Narasimha Rao (supra) did
not directly arise in these cases the Court refrained from making a
reference or conclusive observations about the correctness of this
decision. However, the present case turns almost entirely on the law
laid down in PV Narasimha Rao (supra).

15 [2018] 4 SCR 1 : (2018) 7 SCC 1
16 [2007] 1 SCR 317 : (2007) 3 SCC 184
17 (2006) 7 SCC 1
18 [2010] 4 SCR 1105 : (2010) 6 SCC 113
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28. That the correctness of PV Narasimha Rao (supra) arises squarely
in the facts of this case becomes clear from the impugned judgment
of the High Court. The High Court formulated the question for
consideration to be “whether Article 194(2) of the Constitution of India
confers any immunity on the Members of the Legislative Assembly
for being prosecuted in a criminal court of an offence involving offer
or acceptance of bribe.” This is the precise question that this Court
adjudicated on in PV Narasimha Rao (supra) as well, in the context
of Article 105(2).
29. Further, both the counsel for the appellant and the counsel for CBI
relied on the reasoning in PV Narasimha Rao (supra). The High
Court, in its analysis, held that since Article 194(2) is pari materia
to Article 105(2), the law laid down in PV Narasimha Rao (supra)
covers the field. The High Court relied on PV Narasimha Rao (supra)
in holding that an MP who has not cast his vote is not covered by
the immunity. Since the appellant did not vote as agreed, she was
held not to be protected from immunity under Article 194(2).
30. The issue which arose before the High Court turned on the decision
in PV Narasimha Rao (supra). Therefore, this proceeding provides
the correct occasion to settle the law once and for all. There is no
infirmity in the reference to seven judges to reconsider the decision
in PV Narasimha Rao (supra).
31. Mr Raju Ramachandran, senior counsel appearing on behalf of
the appellant has argued that a position of law which has stood
undisturbed since 1998 should not be interfered with by the Court.
We do not consider it appropriate for this Court to confine itself to
such a rigid understanding of the doctrine of stare decisis. The ability
of this Court to reconsider its decisions is necessary for the organic
development of law and the advancement of justice. If this Court is
denuded of its power to reconsider its decisions, the development
of constitutional jurisprudence would virtually come to a standstill.
In the past, this Court has not refrained from reconsidering a prior
construction of the Constitution if it proves to be unsound, unworkable,
or contrary to public interest. This delicate balance was eloquently
explained by HR Khanna, J in Maganlal Chhaganlal (P) Ltd. v.
Municipal Corpn. of Greater Bombay19 in the following terms:

19 [1975] 1 SCR 1 : (1974) 2 SCC 402
[2024] 3 S.C.R. 493

Sita Soren v. Union of India

“22. […] The Court has to keep the balance between the
need of certainty and continuity and the desirability of
growth and development of law. It can neither by judicial
pronouncements allow law to petrify into fossilised rigidity
nor can it allow revolutionary iconoclasm to sweep away
established principles. On the one hand the need is to
ensure that judicial inventiveness shall not be desiccated or
stunted, on the other it is essential to curb the temptation
to lay down new and novel principles in substitution of
well-established principles in the ordinary run of cases
and the readiness to canonise the new principles too
quickly before their saintliness has been affirmed by the
passage of time. […]”
32. A Bench of seven judges of this Court in Bengal Immunity Company
Limited v. State of Bihar and Ors.,20 delineated the powers of
this Court to reconsider its own decisions in view of the doctrine of
stare decisis. Both SR Das, CJ and Bhagwati, J, in their separate
opinions, detailed the power of this Court to reconsider its judgments,
particularly when they raise issues of constitutional importance. SR
Das, J explored the judgments delivered in various jurisdictions,
such as England, Australia, and the United States to conclude
that this Court cannot be denuded of its power to depart from its
previous decisions, particularly on questions of interpretation of the
Constitution. The Court observed that an erroneous interpretation
of the Constitution could result in a situation where the error is not
rectified for a long period of time to the detriment of the general
public. The test laid down by the Court was rooted in establishing
the “baneful effect” of the previous decision on the “general interests
of the public”. It was observed:
“15. […] in a country governed by a Federal Constitution,
such as the United States of America and the Union
of India are, it is by no means easy to amend the
Constitution if an erroneous interpretation is put upon
it by this Court. (See Article 368 of our Constitution).
An erroneous interpretation of the Constitution may
quite conceivably be perpetuated or may at any rate

20 [1955] 2 SCR 603 : 1955 SCC OnLine SC 2
494 [2024] 3 S.C.R.

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remain unrectified for a considerable time to the great
detriment to public well being … There is nothing in
our Constitution which prevents us from departing
from a previous decision if we are convinced of its
error and its baneful effect on the general interests of
the public. Article 141 which lays down that the law
declared by this Court shall be binding on all courts
within the territory of India quite obviously refers
to courts other than this Court. The corresponding
provision of the Government of India Act, 1935 also
makes it clear that the courts contemplated are the
subordinate courts.”
(emphasis supplied)
NH Bhagwati, J also emphasized the distinction between deviating
from a decision dealing with the interpretation of statutory provisions
and an interpretation of the Constitution, while opining that while
an incorrect interpretation of a statute may be corrected by the
legislature, it is not as easy to amend the Constitution to correct an
unworkable interpretation. Akin to the exposition by SR Das, J, the
test to reconsider previous decisions in the opinion of Bhagwati, J
is whether the previous decision is “manifestly wrong or erroneous”
or “public interest” requires it to be reconsidered.
33. The doctrine of stare decisis provides that the Court should not lightly
dissent from precedent. However, this Court has held in a consistent
line of cases,21 that the doctrine is not an inflexible rule of law, and it
cannot result in perpetuating an error to the detriment of the general
welfare of the public. This Court may review its earlier decisions if
it believes that there is an error, or the effect of the decision would
harm the interests of the public or if “it is inconsistent with the legal
philosophy of the Constitution”. In cases involving the interpretation
of the Constitution, this Court would do so more readily than in other
branches of law because not rectifying a manifest error would be
harmful to public interest and the polity. The period of time over
which the case has held the field is not of primary consequence.

21 See Sambhu Nath Sarkar v. State of W.B., [1974] 1 SCR 1 : (1973) 1 SCC 856; Lt. Col. Khajoor Singh
v. Union of India, [1961] 2 SCR 828; Union of India v. Raghubir Singh, [1989] 3 SCR 316 : (1989) 2 SCC
754; Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, [2002] 3 SCR 100 : (2002) 5 SCC
111; Supreme Court Advocates-on-Record Assn. v. Union of India, [2015] 13 SCR 1 : (2016) 5 SCC 1
[2024] 3 S.C.R. 495

Sita Soren v. Union of India

This Court has overruled decisions which involve the interpretation
of the Constitution despite the fact that they have held the field for
long periods of time when they offend the spirit of the Constitution.
34. The judgment of the majority in PV Narasimha Rao (supra) deals
with an important question of constitutional interpretation which
impacts probity in public life. The decision has been met with notes of
discord by various benches of this Court ever since it was delivered
in 1998. An occasion has arisen in this case to lay down the law and
resolve the dissonance. This is not an instance of this Court lightly
transgressing from precedent. In fact, this case is an example of the
Court giving due deference to the rule of precedent and refraining
from reconsidering the decision in PV Narasimha Rao (supra) until
it arose squarely for consideration.
35. The appellant has relied on judgments of this Court in Shanker
Raju v. Union of India22, Shah Faesal v. Union of India23, Keshav
Mills Co. Ltd. v. CIT24 and Krishena Kumar v. Union of India25.
These judgments reiterate the proposition that (i) the doctrine of
stare decisis promotes certainty and consistency in law; (ii) the
Court should not make references to reconsider a prior decision in
a cavalier manner; and (iii) a settled position of law should not be
disturbed merely because an alternative view is available. However,
all these judgments recognize the power of this Court to reconsider
its decisions in certain circumstances – including considerations of
“public policy”; “public good” and to “remedy continued injustice”. In
the facts which arose in those cases, this Court found that there was
no compelling reason to reconsider certain judgments of this Court.
36. In Shanker Raju (supra), this Court was dealing with the interpretation
of the Administrative Tribunals (Amendment) Act, 2006 and the
appointment of a judicial member of the Central Administrative
Tribunal. The two-judge Bench observed that it was bound by the
decision of a bench of larger strength adjudicating a similar issue
and could not reconsider the view taken in that decision merely
because an alternative view was available.

22 [2011] 2 SCR 1 : (2011) 2 SCC 132
23 [2020] 3 SCR 1115 : (2020) 4 SCC 1
24 [1965] 2 SCR 908
25 [1990] 3 SCR 352 : (1990) 4 SCC 207
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37. In Shah Faesal (supra), a Constitution Bench of this Court was
adjudicating on the question of whether the petitions were to be
referred to a larger bench of seven judges on the ground that there
were purportedly two contradictory decisions by benches of five
judges. The Court observed that references to larger benches cannot
be made casually or based on minor inconsistencies between two
judgments. In that context, the Court found that the decisions were
not irreconcilable with each other nor was one of the decisions per
incuriam. While laying down the law on the doctrine of stare decisis,
the Court held that in certain cases the Court may reconsider
its decisions, particularly when they prove to be “unworkable” or
“contrary to well-established principles”. The Court also adverted to
the transition in the practice of the House of Lords in the UK, from
an absolute prohibition on reconsidering previous decisions to the
present position, which permits overruling of decisions in certain
circumstances. The Court also quoted the Canadian position to the
effect that while precedent should not routinely be deviated from
reconsidering previous decisions is permissible when it is necessary
in “public interest”.
38. The decision in Keshav Mills (supra) interpreted the provisions of
the Income Tax Act, 1922 and in the circumstances of that case, the
Court did not find any compelling reasons to reconsider previous
decisions on a similar point of law. The Court recognized that it
is permissible in circumstances where it is in the “interests of the
public” or if there are any other “valid” or “compulsive” reasons,
to reconsider a prior decision. Further, the Court noted that it
would not be wise to lay down principles to govern the approach
of the Court in reviewing its decisions as it is based on several
considerations, including, the impact of the error on the “general
administration of law” or on “public good”. This exposition is, in
fact, contained in the same paragraph that the appellant relies
on to advance a rigid understanding of stare decisis. The bench
of seven judges of this Court (speaking through Gajendragadkar,
CJ) observed:
“23. […] In reviewing and revising its earlier decision, this
Court should ask itself whether in the interests of the
public good or for any other valid and compulsive
reasons, it is necessary that the earlier decision
should be revised. When this Court decides questions
[2024] 3 S.C.R. 497

Sita Soren v. Union of India

of law, its decisions are, under Article 141, binding on all
courts within the territory of India, and so, it must be the
constant endeavour and concern of this Court to introduce
and maintain an element of certainty and continuity in the
interpretation of law in the country. Frequent exercise by
this Court of its power to review its earlier decisions on
the ground that the view pressed before it later appears
to the Court to be more reasonable, may incidentally tend
to make law uncertain and introduce confusion which
must be consistently avoided. That is not to say that if
on a subsequent occasion, the Court is satisfied that
its earlier decision was clearly erroneous, it should
hesitate to correct the error; but before a previous
decision is pronounced to be plainly erroneous, the
Court must be satisfied with a fair amount of unanimity
amongst its members that a revision of the said view is
fully justified. It is not possible or desirable, and in any
case, it would be inexpedient to lay down any principles
which should govern the approach of the Court in dealing
with the question of reviewing and revising its earlier
decisions. It would always depend upon several relevant
considerations: —What is the nature of the infirmity or
error on which a plea for a review and revision of the
earlier view is based? On the earlier occasion, did some
patent aspects of the question remain unnoticed, or was
the attention of the Court not drawn to any relevant and
material statutory provision, or was any previous decision
of this Court bearing on the point not noticed? Is the Court
hearing such plea fairly unanimous that there is such an
error in the earlier view? What would be the impact of
the error on the general administration of law or on
public good? Has the earlier decision been followed
on subsequent occasions either by this Court or by the
High Courts? And, would the reversal of the earlier
decision lead to public inconvenience, hardship or
mischief? These and other relevant considerations must
be carefully borne in mind whenever this Court is called
upon to exercise its jurisdiction to review and revise its
earlier decisions. These considerations become still more
significant when the earlier decision happens to be a
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unanimous decision of a Bench of five learned Judges
of this Court.”
(emphasis supplied)
39. Similarly, Krishena Kumar (supra) was a case about pension
payable to government employees. There, too, although the Court
did not find compelling reasons to reconsider its previous decisions
in that factual context, it recognized that the Court does have the
power to do so in order to “remedy continued injustice” or due to
“considerations of public policy”.
40. The context in the above cases cited by the appellant is not comparable
with the present case. As set out in the order of reference and in the
course of this judgment, the decision in PV Narasimha Rao (supra)
has wide ramifications on public interest, probity in public life and
the functioning of parliamentary democracy. The majority judgment
contains several apparent errors inter alia in its interpretation of the
text of Article 105; its conceptualization of the scope and purpose of
parliamentary privilege and its approach to international jurisprudence
all of which have resulted in a paradoxical outcome. The present
case is one where there is an imminent threat of this Court allowing
an error to be perpetuated if the decision in PV Narasimha Rao
(supra) is not reconsidered.
41. Finally, the appellant also relies on the judgment of this Court in
Ajit Mohan v. Legislative Assembly, National Capital Territory of
Delhi26, where this Court observed that there are “divergent views”
amongst constitutional experts on “whether full play must be given
to the powers, privileges, and immunities of legislative bodies, as
originally defined in the Constitution, or (whether it) is to be restricted.”
However, it has been urged, that this Court refused to express its
views on the matter on the ground that such an opinion must be left to
the Parliament. The appellant submits that similarly, in this case, the
Court must refrain from taking a conclusive view and leave the issue
for the determination of Parliament. The argument is misconceived.
42. This judgment does not seek to determine or restrict the “powers,
privileges, and immunities” of the legislature as defined in the
Constitution. Rather, this judgment has a limited remit which is to

26 [2021] 14 SCR 611 : (2022) 3 SCC 529
[2024] 3 S.C.R. 499

Sita Soren v. Union of India

adjudicate on the correct interpretation of Article 105 and Article 194
of the Constitution. Therefore, this Court is adjudicating upon the
interpretation of the Constitution as it stands, and not on the question
of whether “full play” should be given to the privileges.
43. In a separate but concurring opinion in Mark Graves v. People of
the State of New York27 while overruling two previous decisions
of the United States Supreme Court on a question of constitutional
importance, Frankfurter, J pithily observed:
“Judicial exegesis is unavoidable with reference to an
act like our Constitution, drawn in many particulars with
purposed vagueness so as to leave room for the unfolding
future. But the ultimate touchstone of constitutionality
is the Constitution itself and not what we have said
about it.”
(emphasis supplied)
44. The above formulation holds true for the Constitution of India as well,
which is a transformative document that raises delicate issues of
constitutional interpretation. Cognizant of the consequences of the
majority judgment, we endeavour to stay true to what the “Constitution
itself” fathomed as the remit of Articles 105(2) and 194(2) even if
it may be at the cost of moving away from “what we have said
about it” in PV Narasimha Rao (supra). We believe that we must
not perpetuate a mistaken interpretation of the Constitution, merely
because of rigid allegiance to a previous opinion of five judges of
this Court.
45. Having adverted to the background, submissions and preliminary
issues, we turn to the subject which arises for consideration.
E. History of parliamentary privilege in India
46. In a deliberative democracy, the aspirations of the people are met
by discourse in democratic institutions. The foremost among these
institutions are Parliament and the State Legislatures. The object of the
Constitution to give life and meaning to the aspirations of the people
is carried out by its representatives through legislative business,
deliberations, and dialogue. Parliament is called the “grand inquest

27 306 US 466 (1939)
500 [2024] 3 S.C.R.

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of the nation.” Not only can the actions and legislative priorities of
the government of the day be scrutinised and criticised to hold it
accountable, but Parliament also acts as a forum for ventilating the
grievances of individuals, civil society, and public stakeholders. When
the space for deliberation in the legislature shrinks, people resort to
conversations and democratic actions outside the legislature. This
privilege of the citizens to scrutinise the proceedings in Parliament is a
concomitant right of a deliberative democracy which is a basic feature
of the Constitution. Our Constitution intended to create institutions
where deliberations, views and counterviews could be expressed
freely to facilitate a democratic and peaceful social transformation.
47. Parliament is a quintessential public institution which deliberates
on the actualisation of the aspirations of all Indians. The fulcrum
of parliamentary privileges under a constitutional and democratic
set up is to facilitate the legislators to freely opine on the business
before the House. Freedom of speech in the legislature is hence a
privilege essential to every legislative body.
48. A deliberative democracy imagines deliberation as an ethic of good
governance and is not restricted to the parliamentary sphere alone.
The opinion of Sanjeev Khanna, J. in Rajeev Suri v DDA,28 elucidates
the contours of deliberative democracy as follows:
“653. Deliberative democracy accentuates the right of
participation in deliberation, in decision-making, and in
contestation of public decision-making. Contestation before
the courts post the decision or legislation is one form of
participation. Adjudication by courts, structured by the legal
principles of procedural fairness and deferential power of
judicial review, is not a substitute for public participation
before and at the decision-making stage. In a republican
or representative democracy, citizens delegate the
responsibility to make and execute laws to the elected
government, which takes decisions on their behalf.
This is unavoidable and necessary as deliberation and
decision-making is more efficient in smaller groups.
The process requires gathering, processing and drawing
inferences from information especially in contentious

28 [2021] 15 SCR 283 : (2022) 11 SCC 1
[2024] 3 S.C.R. 501

Sita Soren v. Union of India

matters. Vested interests can be checked. Difficult, yet
beneficial decisions can be implemented. Government
officers, skilled, informed and conversant with the issues,
and political executive backed by the election mandate
and connected with electorate, are better equipped and
positioned to take decisions. This enables the elected
political executive to carry out their policies and promises
into actual practice. Further, citizens approach elected
representatives and through them express their views
both in favour and against proposed legislations and
policy measures. Nevertheless, when required draft
legislations are referred to Parliamentary Committees
for holding elaborate consultation with experts
and stakeholders. The process of making primary
legislation by elected representatives is structured
by scrutiny, consultation and deliberation on different
views and choices infused with an element of garnering
consensus.
…
656. However, delegation of the power to legislate and
govern to elected representatives is not meant to deny the
citizenry›s right to know and be informed. Democracy, by
the people, is not a right to periodical referendum; or
exercise of the right to vote, and thereby choose elected
representatives, express satisfaction, disappointment,
approve or disapprove projected policies. Citizens’
right to know and the Government’s duty to inform
are embedded in the democratic form of governance
as well as the fundamental right to freedom of speech
and expression. Transparency and receptiveness are
two key propellants as even the most competent and
honest decision-makers require information regarding the
needs of the constituency as well as feedback on how the
extant policies and decisions are operating in practice.
This requires free flow of information in both directions.
When information is withheld/denied suspicion and doubt
gain ground and the fringe and vested interest groups
take advantage. This may result in social volatility. [ With
reference to Olson’s 7th implication, “7. Distributional
502 [2024] 3 S.C.R.

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coalitions … reduce the rate of economic growth…”.
‘The Rise and Decline of Nations’ by Mancur Olson and
subsequent studies.]”
(emphasis supplied)
The freedom of elected legislators to discuss and debate matters
of the moment on the floor of the House is a key component of a
deliberative democracy in a Parliamentary form of government. The
ability of legislators to conduct their functions in an environment
which protects their freedom to do so without being overawed by
coercion or fear is constitutionally secured. As citizens, legislators
have a fundamental right to the freedom of speech and expression.
Going beyond that, the Constitution secures the freedom to speak
and debate in the legislatures both of the Union and States. This is
the protection afforded to individual legislators. The recognition of that
right is premised on the need to secure the institutional foundation
of Parliament and the State legislatures as key components of the
dialogue, debate and critique which sustains democracy.
49. In the Indian context, deliberative democracy as well as the essential
privilege of freedom of speech in legislatures cannot be understood
without reference to its history and development in the aftermath of the
struggle for independence from colonial rule. India provides an example
in history where representative institutions have evolved in stages.
The privileges of legislatures in India have been closely connected
with the history of these institutions. This history can be traced to the
history of parliamentary privileges in the House of Commons in the
UK as well as the struggle of the Indian Legislatures to claim these
privileges under colonial rule. The steps which were initiated under
colonial rule to bring political and parliamentary governance to India
always fell short of the aspirations of Indians. This can primarily be
attributed to the fact that British rule was resistant to the desire of
Indians to be independent. Hence, the Indian legislatures were not
acknowledged to have comparable privileges to those of the House
of Commons in the UK. In Kielly v. Carson29, the Privy Council had
propounded that the House of Commons in the UK had acquired
privileges by ancient usage and colonial legislatures had no lex
et consuetudo parliament or the law and custom of Parliament as

29 (1841-42) 4 Moo. PC 63
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their rights emanated from a statute. This implied that there were no
inherent rights granted to legislatures under colonial rule.
50. Under the rule of the East India Company, law making lay in the
exclusive domain of the executive till 1833. The Government of
India Act 1833 redesignated the Governor-General of Bengal as the
Governor-General of India with exclusive legislative powers. The
Governor-General was to have four members one of whom would be
a law member who was not entitled to act as a member of the Council
except for legislative purposes. This was an introductory measure for
legislatures in India because the Council of the Governor-General
would hold distinct meetings to transact its executive functions and
legislative functions. This procedure was envisaged for convenience
in enacting laws in the vast and diverse social milieu in India rather
than a desire to provide representation as a means for framing better
laws. However, reflecting the need for legislative privileges in carrying
out the duties of the legislators, the first law member, Lord Macaulay,
made efforts to secure some special facilities in the nature of powers
by his draft standing orders. These special facilities included providing
complete information on the subject of the legislation, the right to
be present in all meetings of the Council of the Governor-General,
freedom of speech, and freedom of voting.30
51. The privileges of attendance and voting even in non-legislative
business were extended by the Charter Act 1853. It marked a further
separation of the executive and legislative functions. The Legislative
Council was to have additional members to help transact the legislative
business and give their independent considerations to the laws under
scrutiny. These members in the Legislative Council did not have any
privileges by statute, but the absence of restrictions on their freedom
of speech was construed as conferring inherent rights and privileges
on them. The Council therefore attempted to assume to itself powers
akin to a mini Parliament modelled around the House of Commons
in the UK. The Legislative Council under the Acts of 1833 and 1853
had the power to frame their own rules of procedure.
52. This power was taken away in the Indian Council Act 1861. However,
Section 10 of the 1861 Act introduced between six and twelve non-
official members into the Legislative Councils, who could be British

30 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 317-18
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or Indians. There was an implicit recognition of the freedom of
speech and vote of these additional members. The British Parliament
had recognised the existence of the privilege for the members of
the Indian Councils, which was also confirmed by the Secretary of
State for India.31 Nevertheless the provisions of the 1861 Act were
sufficiently stringent and did not allow the Council to have any activity
beyond the limited sphere prescribed by the Act. Moreover, there
was a marked difference between the freedom of speech effectively
enjoyed by official members and nominated Indian members.32
53. The Government of India Act 1909 marked a significant shift in the
evolution of India’s political institutions. The Act allowed more Indians
to be a part of Legislative Councils and enlarged their functions.
Members were allowed to ask questions and supplementary
questions to the executive. The Act was a way forward for electoral
and representative governance by prescribing the indirect election of
Indians to the Council. However, even in these Councils, discussion
on certain subjects was not permitted. Non-official members continued
to assert the privilege of free speech in the Council. Despite being
indirectly elected, the Indian members of legislatures in India diluted
the rigidity of colonial governance in India. In the absence of official
support, privileges grew as a convention rather than law. The executive
felt at liberty to violate the privileges of the Legislative Council and
at any rate maintained that the Councils in India did not have any
privilege akin to the UK House of Commons.33
54. The Government of India Act 1919 separated the legislatures from
executive control. It introduced dyarchy, by prescribing two classes of
administrators – the Executive councillors who were not accountable
to the legislature and the ministers who would enjoy the confidence
of the legislature. The Act extended more powers to the legislatures
than previously enjoyed by them. However, members were restricted
on the range of subjects which they could discuss, participate in and
vote upon. Many privileges were not specified in the 1919 Act or
rules of the procedure of the House. Nevertheless, the legislature
claimed privileges as an inherent right of the legislature in the face of

31 Legislative Dispatch No. 14 of 9 August 1861, para 23
32 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 102-103
33 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 139-141, 158
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an unwilling executive. The reason for the hesitation of the colonial
Government of India was that a government run by a foreign power
was not willing to extend parliamentary privileges to Indian legislators
as a recognition of their possessing sovereign powers.34 The 1919
Act gave a qualified privilege of freedom of speech to the Houses
of Legislature. Section 24(7) of the 1919 Act read thus:
“(7) Subject to the rules and standing orders affecting the
Council, there shall be freedom of speech in the Governors’
Legislative Councils. No person shall be liable to any
proceedings in any court by reason of his speech or vote
in any such Council or by reason of anything contained in
any official report of the proceedings of any such Council.”
A corresponding provision was made in Section 11(7) of the Act with
respect to provincial Legislative Councils. The freedom of speech in
the Legislative Councils was subject to the Rules promulgated by the
Governor-General. Therefore, while freedom of speech was extended
to the Legislative Councils, they were ultimately made subject to the
pleasure of the Governor-General and the Secretary of State for
India for the legislature’s rule making power. The Act therefore did
not make provisions to grant freedom of speech to Indian legislatures
but rather aimed to place restrictions on the freedom of speech in
the House. These restrictions materially impeded the ability of the
legislatures to hold discussions on issues of public importance and
introduce legislation. The Act however did grant the legislature power
to define its own privilege.
55. A committee was set up in 1924 within a few years of the introduction
of the Government of India Act 1919. The committee was tasked
with enquiring into the difficulties or defects in the 1919 Act and
exploring remedies for securing them. The Reforms Committee of
1924 made reference to the privileges of Indian legislative bodies
and opined that:
“…at present such action would be premature. At the same
time we feel that the legislatures and the members thereof
have not been given by the Government of India Act all
the protection that they need. Under the statute there is

34 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 322
506 [2024] 3 S.C.R.

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freedom of speech in all the legislatures and immunity
from the jurisdiction of the Courts in respect of speeches
or votes. Under the rules the Presidents have been given
considerable powers for the maintenance of order, but
there the matter ends.”35
56. Interestingly, the committee suggested that certain additional
privileges be granted to Indian Legislatures. The committee further
recommended introducing a penal provision for influencing votes
within the legislature through inter alia bribery. The report stated:
“We are given to understand that there are at present no
means, of dealing with the corrupt influence of votes within
the legislature. We are unanimously of opinion that the
influencing of votes of members by bribery, intimidation
and the like should be legislated against. Here again we
do not recommend that the matter should be dealt with
as a breach of privilege. We advocate that these offences
should be made penal under the ordinary law.”
57. The government introduced a Legislative Bodies Corrupt Practices
Bill which proposed to penalise (i) the offering of bribe to a member
of a legislature in connection with his functions; and (ii) the receipt on
demand by a member of the legislature of a bribe in connection with
his functions.36 The Bill ultimately lapsed and was not reintroduced.
58. The provisions of the 1919 Act were substantially retained in Section
28(1) of the Government of India Act 1935. Section 28(1) read thus:
“(1) Subject to the provisions of this Act and the rules
and standing orders regulating the procedure of the
Federal Legislature, there shall be freedom of speech in
the Legislature, and no member of the Legislature 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
either Chamber of the Legislature of any report, paper,
votes or proceedings.”

35 Report of the Reforms Enquiry Committee (1924), 75
36 SK Nag, Evolution of Parliamentary Privileges in India till 1947, Sterling Publication, (1978), 213-214
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A corresponding provision was made in Section 71(1) of the 1935 Act
with respect to Provincial Legislatures. The House was empowered
to make rules for the conduct of proceedings. However, they were
always to give way to the rules framed by the Governor-General
for the House. Parliamentary privileges had struck root in India on
legislators demanding parity with the UK House of Commons with
reasonable adjustments to account for Indian needs. This was because
legislators in India felt that their discharge of legislative functions would
be adversely affected in the absence of these privileges. Prominent
among the demands of legislators were the power to punish for
contempt of the House, supremacy of the Chair in matters of the
House, and freedom of speech and freedom from arrest to allow
members to partake in the proceedings and discharge their functions.
59. At no point were these privileges demanded as a blanket immunity
from criminal law. Even in the face of colonial reluctance, the demand
for parliamentary privileges in India was always tied to the relationship
which it bore to the functions which the Indian legislators sought to
discharge.
60. This background prevailed when the Constituent Assembly was
deciding the fate of Articles 85 and 169 of the draft Constitution
which have since become Articles 105 and 194 of the Constitution.
Our founding parents intended the Constitution to be a ‘modernizing’
force. Parliamentary form of democracy was the first level of this
modernizing influence envisaged by the framers of the Constitution.37
The Constitution was therefore born in an environment of idealism
and a strength of purpose born of the struggle for independence.
The framers intended to have a Constitution which would light the
way for a modern India.38
61. When the Constituent Assembly convened to discuss Article 85
of the draft Constitution, Mr HV Kamath moved an amendment to
remove the reference to the House of Commons in the UK and
replace it with the Dominion Legislature in India immediately before
the commencement of the Constitution. Opposing this amendment Mr
Shibban Lal Saxena said, “So far as I know there are no privileges
which we enjoy and if he wants the complete nullification of all our

37 Granville Austin, The Indian Constitution: Cornerstone of a Nation, OUP (1972), ix
38 Granville Austin, The Indian Constitution: Cornerstone of a Nation, OUP (1972), xiii
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privileges he is welcome to have his amendment adopted.”39 The
members of the Constituent Assembly were therefore keenly aware
that their privileges under the colonial rule were not ‘ancient and
undoubted’ like the House of Commons in the UK but a statutory
grant made by successive enactments and assertion by legislatures.
F. Purport of parliamentary privilege in India
I. Functional analysis
62. Article 105 which is located in Part V Chapter II of the Constitution
stipulates the powers, privileges, and immunities of Parliament, its
members and committees. An analogous provision concerning State
Legislatures is in Article 194 of the Constitution. Article 105 reads
as follows:
“105. Powers, privileges, etc., of the Houses of
Parliament and of the members and committees
thereof.
(1) Subject to the provisions of this Constitution and to
the rules and standing orders regulating the procedure
of Parliament, there shall be freedom of speech in
Parliament.
(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 proceedings.
(3) In other respects, the powers, privileges and immunities
of each House of Parliament, and of the members and
the committees of each House, shall be such as may
from time to time be defined by Parliament by law,
and, until so defined, shall be those of that House and
of its members and committees immediately before
the coming into force of section 15 of the Constitution
(Forty-fourth Amendment) Act, 1978.

39 CAD Vol VIII 19 May, 1949 Draft Article 85
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(4) The provisions of clauses (1), (2) and (3) shall apply
in relation to persons who by virtue of this Constitution
have the right to speak in, and otherwise to take
part in the proceedings of, a House of Parliament
or any committee thereof as they apply in relation
to members of Parliament.”
63. Article 105 of the Constitution has four clauses. Clause (1) declares
that there shall be freedom of speech in Parliament. This freedom
is subject to the Constitution and to the rules and standing orders
regulating the procedure in Parliament. Therefore, the freedom of
speech in Parliament would be subject to the provisions that regulate
its procedure framed under Article 118. It is also subject to Article
121 which restricts Parliament from discussing the conduct of any
Judge of the Supreme Court or of a High Court in the discharge
of their duties except upon a motion for presenting an address to
the President praying for the removal of the Judge. The freedom of
speech guaranteed in Parliament under Article 105(1) is distinct from
that guaranteed under Article 19(1)(a). In Alagaapuram R Mohanraj
v. TN Legislative Assembly40 this Court delineated the differences
in these freedoms as follows:
a. While the fundamental right of speech guaranteed under
Article 19(1)(a) inheres in every citizen, the freedom of speech
contemplated under Articles 105 and 194 is not available to
every citizen but only to a member of the legislature;
b. Article 105 is available only during the tenure of the membership
of those bodies. On the other hand, the fundamental right under
Article 19(1)(a) is inalienable;
c. Article 105 is limited to the premises of the legislative bodies.
Article 19(1)(a) has no such geographical limitations; and
d. Article 19(1)(a) is subject to reasonable restrictions which are
compliant with Article 19(2). However, the right of free speech
available to a legislator under Articles 105 or 194 is not subject to
such limitations. That an express provision is made for freedom
of speech in Parliament in clause (1) of Article 105 suggests
that this freedom is independent of the freedom of speech

40 [2016] 6 SCR 611 : (2016) 6 SCC 82
510 [2024] 3 S.C.R.

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conferred by Article 19 and is not restricted by the exceptions
contained therein.
64. Clause (2) of Article 105 has two limbs. The first prescribes that a
member of Parliament shall not be liable before any court in respect
of “anything said or any vote given” by them in Parliament or any
committee thereof. The second limb prescribes that no person shall
be liable before any court in respect of the publication by or under
the authority of either House of Parliament of any report, paper,
vote or proceedings. The vote given by a member of Parliament
is an extension of speech. Therefore, the freedom of a member of
Parliament to cast a vote is also protected by the freedom of speech
in Parliament. In Tej Kiran Jain v. N Sanjeeva Reddy,41 a six-judge
bench of this Court held that Article 105(2) confers immunity in respect
of “anything said” so long as it is “in Parliament.” Therefore, the
immunity is qualified by the fact that it must be attracted to speech
during the conduct of business in Parliament. This Court held that
the word “anything” is of the widest import and is equivalent to
“everything”. It is only limited by the term “in Parliament”.
65. Clauses (1) and (2) explicitly guarantee freedom of speech in
Parliament. Clause (1) is a positive postulate which guarantees
freedom of speech whereas Clause (2) is an extension of the same
freedom postulated negatively. It does so by protecting the speech,
and by extension a vote, from proceedings before a court. Freedom
of speech in the Houses of Parliament and their committees is a
necessary privilege, essential to the functioning of the House. As
we have noted above, the privilege of free speech in the House of
Parliament or Legislature can be traced to the struggle of the Indian
legislators and was granted in progression by the colonial government.
This privilege is not only essential to the ability of Parliament and
its members to carry out their duties, but it is also at the core of
the function of a democratic legislative institution. Members of
Parliament and Legislatures represent the will of the people and their
aspirations. The Constitution was adopted to have a modernizing
influence. The Constitution is intended to meet the aspirations of the
people, to eschew an unjust society premised on social hierarchies
and discrimination, and to facilitate the path towards an egalitarian

41 [1971] 1 SCR 612 : (1970) 2 SCC 272
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society. Freedom of speech in Parliament and the legislatures is
an arm of the same aspiration so that members may express the
grievances of their constituents, express diverse perspectives and
ventilate the perspectives of their constituents. Freedom of speech
in Parliament ensures that the government is held accountable by
the House. In Kalpana Mehta (supra) one of us (DY Chandrachud,
J) had occasion to elucidate the importance of this privilege:
“181. […] Parliament represents collectively, through the
representative character of its Members, the voice and
aspirations of the people. Free speech within Parliament is
crucial for democratic governance. It is through the fearless
expression of their views that Parliamentarians pursue
their commitment to those who elect them. The power
of speech exacts democratic accountability from elected
governments. The free flow of dialogue ensures that in
framing legislation and overseeing government policies,
Parliament reflects the diverse views of the electorate
which an elected institution represents.
182. The Constitution recognises free speech as a
fundamental right in Article 19(1)(a). A separate articulation
of that right in Article 105(1) shows how important the
debates and expression of view in Parliament have been
viewed by the draftspersons. Article 105(1) is not a simple
reiteration or for that matter, a surplusage. It embodies the
fundamental value that the free and fearless exposition
of critique in Parliament is the essence of democracy.
Elected Members of Parliament represent the voices of the
citizens. In giving expression to the concerns of citizens,
Parliamentary speech enhances democracy. […]”
(emphasis supplied)
66. Notably, unlike the House of Commons in the UK, India does not
have ‘ancient and undoubted’ rights which were vested after a
struggle between Parliament and the King. On the contrary, privileges
were always governed by statute in India. The statutory privilege
transitioned to a constitutional privilege after the commencement
of the Constitution. However, while the drafters of the Constitution
expressly envisaged the freedom of speech in Parliament, they left
the other privileges to be decided by Parliament through legislation.
512 [2024] 3 S.C.R.

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Clause (3) of Article 105 states that in respect of privileges not falling
under Clauses (1) and (2) of Article 105, the powers, privileges and
immunities of each House of Parliament, and of the members and
the committees of each House, shall be such as may from time to
time be defined by Parliament by law. Until Parliament defines these
privileges, they are to be those which the House and its members
and committees enjoyed immediately before the coming into force of
Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.
Section 15 reads as follows:
“15. Amendment of article 105.-In article 105 of the
Constitution, in clause (3), for the words “shall be those
of the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the
commencement of this Constitution”, the words, figures and
brackets “shall be those of that House and of its members
and committees immediately before the coming into force
of section 15 of the Constitution (Forty-fourth Amendment)
Act, 1978” shall be substituted.”
67. The privileges enjoyed by the House and its members and
committees immediately before the coming into force of Section
15 of the Forty-fourth amendment to the Constitution were those
enjoyed by the House of Commons in the UK at the commencement
of the Constitution of India. This was also the case with Clause
(3) of Article 194 which was amended by Section 26 of the Forty-
fourth amendment to the Constitution. The reference to the House
of Commons was accepted by the Constituent Assembly for two
reasons. First, Indian legislators did not enjoy any privilege prior to
the commencement of the Constitution and therefore a reference
to the Dominion Parliament would leave the House with virtually no
privileges. Second, it was not possible to make an exhaustive list
of privileges at the time nor was it preferable to enlist such a long
list as a schedule to the Constitution.42
68. Clause (3) allows Parliament to enact a law on its privileges from
time to time. It may be noted here that the House of Commons in

42 See reply of Sir Alladi Krishnaswami Ayyar and Dr BR Ambedkar to the Constituent Assembly, CAD Vol
VIII 19 May 1949 Draft Article 85 and Vol X 16 October 1949 Draft Article 85.
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the UK does not create new privileges.43 Its privileges are those
which have been practiced by the House and have become ancient
and undoubted.
69. Further, unlike the House of Commons in the UK, Parliament in India
cannot claim power of its own composition. The extent of privileges
in India has to be within the confines of the Constitution. Within
this scheme, the Courts have jurisdiction to determine whether the
privilege claimed by the House of Parliament or Legislature in fact
exists and whether they have been exercised correctly. In a steady
line of precedent, this Court has held that in the absence of legislation
on privileges, the Parliament or Legislature may only claim such
privilege which belonged to the House of Commons at the time of
the commencement of the Constitution and that the House is not
the sole judge to decide its own privilege.
70. When the Parliament or Legislatures enact a law on privileges, such a
law would be subject to the scrutiny of Part III of the Constitution. The
interplay between Part III of the Constitution and Article 105(3) arose
in the decision of this Court in MSM Sharma v. Sri Krishna Sinha,44
where a Constitution bench speaking through SR Das, CJ held that
the privileges of the House of Parliament under Clause (3) of Article
105 are those which belonged to the House of Commons in the UK at
the commencement of the Constitution which would prevail over the
fundamental rights guaranteed to citizens under Article 19(1)(a) of the
Constitution. However, if the Parliament were to enact a law codifying
its privilege then it may not step over the fundamental rights of citizens
by virtue of Article 13 of the Constitution. K Subba Rao, J (as the
learned Chief Justice then was) dissented from the majority and held
that the import of privileges held by the House of Commons in the UK
was only a transitory provision till the Parliament or legislatures enact
a law codifying their respective privileges. Therefore, Justice Subba
Rao held in his dissent that the legislature cannot run roughshod over
the fundamental rights of citizens who in theory have retained their
rights and only given a part of it to the legislature.

43 It was agreed in 1704 that no House of Parliament shall have power, by any vote or declaration, to create
new privilege that is not warranted by known laws and customs of Parliament. The symbolic petition by
the Speaker of the House of Commons to the crown claiming the ‘ancient and undoubted’ privileges of
the House of Commons are therefore not to be changed.
44 [1959] Suppl. 1 SCR 806 : AIR 1959 SC 395
514 [2024] 3 S.C.R.

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71. In Special Refence No. 1 of 1964,45 a seven-judge Bench of this
Court opined on the privileges of the State Legislature upon a
Presidential reference. The reference was in the aftermath of the
Speaker of the UP Legislative Assembly directing the arrest and
production of two judges of the High Court. The two judges had
interfered with a resolution to administer reprimand to a person
who had published a pamphlet libelling one of the members of the
Assembly. Gajendragadkar, CJ speaking for the majority did not
disagree with the decision in MSM Sharma (supra) which held that
Article 105(3) and Article 194(3) would prevail over Article 19(1)(a)
of the Constitution. However, the Court held that Article 21 was to
prevail over Articles 105(3) and 194(3) in a conflict between the two.
The Court held that the Parliament or Legislature is not the sole
judge of its privileges and the courts have the power to enquire if a
particular privilege claimed by the legislature in fact existed or not,
by consulting the privileges of the Commons. The determination of
privileges, the Court held, and whether they conform to the parameters
of the Constitution is a question that must be answered by the courts.
This Court opined that:
“37. The next question which faces us arises from the
preliminary contention raised by Mr Seervai that by his
appearance before us on behalf of the House, the House
should not be taken to have conceded to the Court the
jurisdiction to construe Article 194(3) so as to bind it. As
we have already indicated, his stand is that in the matter
of privileges, the House is the sole and exclusive judge
at all stages. […]
…
42. In coming to the conclusion that the content of Article
194(3) must ultimately be determined by courts and not
by the legislatures, we are not unmindful of the grandeur
and majesty of the task which has been assigned to the
legislatures under the Constitution. Speaking broadly, all
the legislative chambers in our country today are playing
a significant role in the pursuit of the ideal of a Welfare
State which has been placed by the Constitution before our

45 [1965] 1 SCR 413 : 1964 SCC OnLine SC 21
[2024] 3 S.C.R. 515

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country, and that naturally gives the legislative chambers
a high place in the making of history today. […]”
(emphasis supplied)
72. The opinion in Special Reference No. 1 of 1964 (supra) was further
affirmed by another seven-judge bench of this Court in State of
Karnataka v. Union of India46 which held that whenever a question
arises whether the House has jurisdiction over a matter under its
privileges, the adjudication of such a claim is vested exclusively in
the courts. Relying on Special Reference No. 1 of 1964 (supra)
and State of Karnataka (supra) a Constitution bench of this Court
in Raja Ram Pal (supra) held that the court has the authority and
jurisdiction to examine if a privilege asserted by the House (or even
a member by extension) in fact accrues under the Constitution.
Further, in Amarinder Singh (supra) a Constitution bench of this
Court held that the courts are empowered to scrutinise the exercise
of privileges by the House.47 The interplay between fundamental
rights of citizens and the privileges of the Houses of Parliament or
Legislature is pending before a Constitution bench of this Court in
N Ravi v. Speaker, Legislative Assembly Chennai.48
73. Clause (4) of Article 105 extends the freedoms in the above clauses
to all persons who by virtue of the Constitution have a right to speak
in Parliament. The four clauses in Articles 105 and 194 form a
composite whole which lend colour to each other and together form
the corpus of the powers, privileges and immunities of the Houses
of Parliament or Legislature, as the case may be, and of members
and committees.
74. We have explored the trajectory of parliamentary privileges, especially
that of freedom of speech in the Indian legislatures. It has been a
timeless insistence of the legislators that their freedom of speech
to carry out their essential legislative functions be protected and
sanctified. Whereas the drafters of our Constitution have expressly
guaranteed the freedom of speech in Parliament and legislature,
they left the other privileges uncodified.

46 [1978] 2 SCR 1 : (1977) 4 SCC 608, para 63
47 (2010) 6 SCC 113, para 54
48 WP (Crl) No. 206-210/2003 etc.
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75. In a consistent line of precedent this Court has held that – firstly,
Parliament or the state legislature is not the sole judge of what
privileges it enjoys and secondly, Parliament or legislature may only
claim privileges which are essential and necessary for the functioning
of the House. We have explored the first of these limbs above. We
shall now analyse the jurisprudence on the existence, extent and
exercise of privileges by the House of Parliament, its members and
committees.
II. Parliamentary privilege as a collective right of the House
76. According to Erskine May, parliamentary privilege is the sum of
certain rights enjoyed by each House collectively as a constituent
part of the “High Court of Parliament” and by members of each
House individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or
individuals.49 The term ‘High Court of Parliament’ dates back to the
time when all powers of legislating and dispensing justice vested
in the Monarch who in turn divested them to a body which would
carry out the function of the legislature as the King sitting in the
High Court of Parliament. To that extent, the term is redundant in
the Indian context where the Constitution is supreme and the power
of the Parliament over its domain flows from and is defined by the
Constitution. However, the definition provides an authoritative guide
to understanding the meaning and remit of parliamentary privileges.
The definition evidently divides privileges into two constituent
elements. The first is the sum of rights enjoyed by the House of
Parliament and the second is the rights enjoyed by members of
the House individually. Rights and immunities such as the power
to regulate its own procedure, the power to punish for contempt of
the House or to expel a member for the remainder of the session
of the House, belong to the first element of privileges held by the
House as a collective body for its proper functioning, protection
of members, and vindication of its own authority and dignity. The
second element of rights exercised individually by members of
the House includes freedom of speech and freedom from arrest,
among others.

49 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th
ed. (2019) 239.
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77. The privilege exercised by members individually is in turn qualified
by its necessity, in that the privilege must be such that “without which
they could not discharge their functions.” We shall elucidate this
limb later in the course of this judgment. These privileges enjoyed
by members of the House individually are a means to ensure and
facilitate the effective discharge of the collective functions of the
House.50 It must therefore be noted that whereas the privileges
enjoyed by members of the House exceed those possessed by
other bodies or individuals, they are not absolute or unqualified. The
privilege of an individual member only extends insofar as it aids the
House to function and without which the House may not be able to
carry out its functions collectively.
78. Subhash C Kashyap has explained parliamentary privileges as
they may be understood in the Indian context. 51 In his book on
parliamentary procedure, the author has opined as follows:
“[…] In Parliamentary parlance the term ‘privilege means
certain rights and immunities enjoyed by each House of
Parliament and its Committees collectively, and by the
members of each House individually without which they
cannot discharge their functions efficiently and effectively.
The object of parliamentary privilege is to safeguard the
freedom, the authority and the dignity of the institution
of Parliament and its members. They are granted by the
Constitution to enable them to discharge their functions
without any let or hindrance. Parliamentary Privileges
do not exempt members from the obligations to the
society which apply to other citizens. Privileges of
Parliament do not place a member of Parliament on
a footing different from that of an ordinary citizen in
the matter of the applications of the laws of the land
unless there are good and sufficient reasons in the
interest of Parliament itself to do so. The fundamental
principle is that all citizens including members of Parliament
should be treated equally before the law. The privileges

50 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th
ed. (2019) 239.
51 Subhash C. Kashyap, Parliamentary Procedure—Law, Privileges, Practice and Precedents, 3rd ed., Uni-
versal Law Publishing Co, 502.
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are available to members only when they are functioning
in their capacity as members of Parliament and performing
their parliamentary duties.”
(emphasis supplied)
79. The understanding which unequivocally emerges supports the claim
that the privileges which accrue to members of the House individually
are not an end in themselves. The purpose which privileges serve
is that they are necessary for the House and its committees to
function. Therefore, we may understand parliamentary privileges as
those rights and immunities which allow the orderly, democratic, and
smooth functioning of Parliament and without which the essential
functioning of the House would be violated.
80. The framers of the Constitution intended to establish a responsible,
responsive and representative democracy. The value and importance
of such a democracy weighed heavily on the framers of the Constitution
given the history of an oppressive colonial government to which India
had been subjected. The history of parliamentary democracy shows
that the colonial government denied India a responsible government
where initially Indians were kept out of legislating on laws which
would be enforced on its diverse social tapestry. Even when Indians
were allowed in legislatures, a responsive government which could
be accountable to the people in a meaningful way was yet a distant
reality in the colonial period. The ability of the legislature in turn
to scrutinise the actions of the executive was effaced and despite
the statutory guarantee of freedom of speech for members of the
House in the Government of India Act 1919, the guarantee remained
illusory to the extent that many subjects were restricted from being
discussed in the legislatures.
81. In that sense, the foundations of a deliberative democracy premised
on responsibility, responsiveness, and representation sought to
ensure that the executive government of the day is elected by
and responsible to the Parliament or Legislative Assemblies which
comprise of elected representatives. These representatives would
be able to express their views on behalf of the citizens and ensure
that the government lends ear to their aspirations, complaints and
grievances. This aspect of the functioning of the House is essential
to sustain a meaningful democracy. This necessitates that members
of the House be able to attend the House and thereafter speak their
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minds without fear of being harassed by the executive or any other
person or body on the basis of their actions as members of the
House in the exercise of their duties. In the absence of this feature
Parliament and the state legislatures would lose the essence of their
representative character in a democratic polity.
82. The privileges enshrined under Article 105 and Article 194 of the
Constitution are of the widest amplitude but to the extent that they
serve the aims for which they have been granted. The framers of the
Constitution would not have intended to grant to the legislatures those
rights which may not serve any purpose for the proper functioning of
the House. The privileges of the members of the House individually
bear a functional relationship to the ability of the House to collectively
fulfil its functioning and vindicate its authority and dignity. In other
words, these freedoms are necessary to be in furtherance of fertilizing
a deliberative, critical, and responsive democracy. In State of Kerala
v. K Ajith,52 one of us (DY Chandrachud, J) held that a member of
the legislature, the opposition included, has a right to protest on the
floor of the legislature. However, the said right guaranteed under
Article 105(1) of the Constitution would not exclude the application
of ordinary criminal law against acts not in direct exercise of the
duties of the individual as a member of the House. This Court held
that the Constitution recognises privileges and immunities to create
an environment in which members of the House can perform their
functions and discharge their duties freely. These privileges bear a
functional relationship to the discharge of the functions of a legislator.
They are not a mark of status which makes legislators stand on an
unequal pedestal.
83. MN Kaul and SL Shakdher have in their celebrated work on the
Practice and Procedure of Parliament endorsed this view by stating
that53
“In modern times, parliamentary privilege has to be viewed
from a different angle than in the earlier days of the struggle
of Parliament against the executive authority. Privilege at
that time was regarded as a protection of the members of

52 [2021] 6 SCR 774 : (2021) 17 SCC 318
53 MN Kaul and SL Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat, Metropolitan
Book Co. Pvt. Ltd., 7th ed., 229.
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Parliament against an executive authority not responsible
to Parliament. The entire background in which privileges
of Parliament are now viewed has changed because
the Executive is now responsible to Parliament. The
foundation upon which they rest is the maintenance
of the dignity and independence of the House and of
its members.”
(emphasis supplied)
The privileges enjoyed by members of the House are tethered
intrinsically to the functioning of the House collectively. A House of
Parliament or Legislature functions through the collective will of its
individual members. These members acting as constituents of the
House may not claim any privilege or immunity unconnected with
the working of the entire House.
84. While some cherished freedoms exercised individually by members
of the House, including the freedom of speech, have been undeniably
understood to be essential to the functioning of the House as
a whole, other exercises such as damaging public property or
committing violence are not and cannot be deemed to have immunity.
The privileges and immunities enshrined in Articles 105 and 194
of the Constitution with respect to Houses of Parliament and the
Legislatures, their members and committees, respectively belong
to the House collectively. The exercise of the privileges individually
by members must be tested on the anvil of whether it is tethered to
the healthy and essential functioning of the House.
III. Necessity test to claim and exercise a privilege
85. Having established that the privileges and immunities exercisable by
members of the House individually must be tethered to the functioning
of the House we must now explore which privileges may be deemed
to accrue to the House collectively and by extension to individual
members. In State of Karnataka (supra) a seven-Judge bench of
this Court speaking through MH Beg, CJ held that the powers under
Article 194 (as well as Article 105) are those which depend upon
and are necessary for the conduct of the business of each House.
In that sense, these powers may not even apply to all the privileges
which accrue to the House of Commons but may not be necessary
for the functioning of the House. The learned Chief Justice stated:
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“57. It is evident, from the Chapter in which Article 194
occurs as well as the heading and its marginal note
that the “powers” meant to be indicated here are not
independent. They are powers which depend upon
and are necessary for the conduct of the business of
each House. They cannot also be expanded into those
of the House of Commons in England for all purposes.
For example, it could not be contended that each House
of a State Legislature has the same share of legislative
power as the House of Commons has, as a constituent
part of a completely sovereign legislature. Under our law
it is the Constitution which is sovereign or supreme. The
Parliament as well as each Legislature of a State in India
enjoys only such legislative powers as the Constitution
confers upon it. Similarly, each House of Parliament or
State Legislature has such share in legislative power as
is assigned to it by the Constitution itself. […]”
(emphasis supplied)
86. This Court held that in India the source of authority is the Constitution
which derives its sovereignty from the people. The powers and
privileges claimed by a House cannot traverse beyond those which
are permissible under the Constitution. The Constitution only allows
exercise of those powers, privileges, and immunities which are
essential to the functioning of the House or a committee thereof.
MN Kaul and SL Shakdher have opined that54
“In interpreting these privileges, therefore, regard must
be had to the general principle that the privileges of
Parliament are granted to members in order that “they
may be able to perform their duties in Parliament
without let or hindrance”. They apply to individual
members “only insofar as they are necessary in order that
the House may freely perform its functions. They do
not discharge the member from the obligations to society
which apply to him as much and perhaps more closely in
that capacity, as they apply to other subjects”. Privileges

54 MN Kaul and SL Shakdher, Practice and Procedure of Parliament, Lok Sabha Secretariat, Metropolitan
Book Co. Pvt. Ltd., 7th ed., 229.
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of Parliament do not place a member of Parliament on
a footing different from that of an ordinary citizen in the
matter of the application of laws unless there are good
and sufficient reasons in the interest of Parliament itself
to do so.”
(emphasis supplied)
87. The evolution of parliamentary privileges as well as the jurisprudence
of this Court establish that members of the House or indeed the House
itself cannot claim privileges which are not essentially related to their
functioning. To give any privilege unconnected to the functioning of
the Parliament or Legislature by necessity is to create a class of
citizens which enjoys unchecked exemption from ordinary application
of the law. This was neither the intention of the Constitution nor the
goal of vesting Parliament and Legislature with powers, privileges
and immunities.
88. In Amarinder Singh (supra) a Constitution bench of this Court held
that the test to scrutinise the exercise of privileges is whether they
were necessary to safeguard the integrity of legislative functions. KG
Balakrishnan, CJ after exploring a wealth of material on the subject
opined that privileges serve the distinct purpose of safeguarding the
integrity of the House. This Court held that privileges are not an end
in themselves but must be exercised to ensure the effective exercise
of legislative functions. The Chief Justice observed that:
“35. The evolution of legislative privileges can be traced
back to medieval England when there was an ongoing
tussle for power between the monarch and Parliament.
In most cases, privileges were exercised to protect the
Members of Parliament from undue pressure or influence
by the monarch among others. Conversely, with the gradual
strengthening of Parliament there were also some excesses
in the name of legislative privileges. However, the ideas
governing the relationship between the executive
and the legislature have undergone a sea change
since then. In modern parliamentary democracies,
it is the legislature which consists of the people’s
representatives who are expected to monitor executive
functions. This is achieved by embodying the idea of
“collective responsibility” which entails that those
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who wield executive power are accountable to the
legislature.
36. However, legislative privileges serve a distinct purpose.
They are exercised to safeguard the integrity of
legislative functions against obstructions which could
be caused by members of the House as well as non-
members. Needless to say, it is conceivable that in some
instances persons holding executive office could potentially
cause obstructions to legislative functions. Hence, there
is a need to stress on the operative principles that can be
relied on to test the validity of the exercise of legislative
privileges in the present case.
…
47. […] the exercise of legislative privileges is not an
end in itself. They are supposed to be exercised in order
to ensure that legislative functions can be exercised
effectively, without undue obstructions. These functions
include the right of members to speak and vote on the
floor of the House as well as the proceedings of various
Legislative Committees. In this respect, privileges can be
exercised to protect persons engaged as administrative
employees as well. The important consideration for
scrutinising the exercise of legislative privileges is
whether the same was necessary to safeguard the
integrity of legislative functions. […].”
(emphasis supplied)
89. In Lokayukta, Justice Ripusudan Dayal v. State of MP, 55 a
three-judge bench of this Court held that the scope of a privilege
enjoyed by a House and its members must be tested on the basis
of the necessity of the privilege to the House for its free functioning.
This Court further held that members of the House cannot claim
exemption from the application of ordinary criminal law under the
garb of privileges which accrue to them as members of the House
under the Constitution. P Sathasivam, CJ opined that

55 [2014] 3 SCR 242 : (2014) 4 SCC 473
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“51. The scope of the privileges enjoyed depends upon
the need for privileges i.e. why they have been provided
for. The basic premise for the privileges enjoyed by the
Members is to allow them to perform their functions as
Members and no hindrance is caused to the functioning
of the House. […]
52. It is clear that the basic concept is that the privileges
are those rights without which the House cannot
perform its legislative functions. They do not exempt
the Members from their obligations under any statute which
continue to apply to them like any other law applicable
to ordinary citizens. Thus, enquiry or investigation into
an allegation of corruption against some officers of the
Legislative Assembly cannot be said to interfere with the
legislative functions of the Assembly. No one enjoys any
privilege against criminal prosecution.
…
76. It is made clear that privileges are available only
insofar as they are necessary in order that the House
may freely perform its functions. For the application of
laws, particularly, the provisions of the Lokayukt Act and
the Prevention of Corruption Act, 1988, the jurisdiction
of the Lokayukt or the Madhya Pradesh Special Police
Establishment is for all public servants (except the Speaker
and the Deputy Speaker of the Madhya Pradesh Vidhan
Sabha for the purposes of the Lokayukt Act) and no
privilege is available to the officials and, in any case, they
cannot claim any privilege more than an ordinary citizen to
whom the provisions of the said Acts apply. Privileges do
not extend to the activities undertaken outside the House
on which the legislative provisions would apply without
any differentiation.”
(emphasis supplied)
90. The necessity test for ascertaining parliamentary privileges has struck
deep roots in the Indian context. We do not need to explore the well-
established jurisprudence on the necessity test in other jurisdictions
beyond the above exposition of Indian jurisprudence on the subject
at this juncture. The evolution of parliamentary privileges in various
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parliamentary jurisdictions has shown a consistent pattern that when
an issue involving privileges arises, the test applied is whether the
privilege claimed is essential and necessary to the orderly functioning
of the House or its committee. We may also note that the burden
of satisfying that a privilege exists and that it is necessary for the
House to collectively discharge its function lies with the person or
body claiming the privilege. The Houses of Parliament or Legislatures,
and the committees are not islands which act as enclaves shielding
those inside from the application of ordinary laws. The lawmakers
are subject to the same law that the law-making body enacts for the
people it governs and claims to represent.
91. We therefore hold that the assertion of a privilege by an individual
member of Parliament or Legislature would be governed by a twofold
test. First, the privilege claimed has to be tethered to the collective
functioning of the House, and second, its necessity must bear a
functional relationship to the discharge of the essential duties of a
legislator.
G. Bribery is not protected by parliamentary privilege
I. Bribery is not in respect of anything said or any vote given
92. The question remains as to whether these privileges attract immunity
to a member of Parliament or of the Legislatures who engages in
bribery in connection with their speech or vote. The test of intrinsic
relation to the functioning of the House and the necessity test evolved
by this Court in the context of determining the remit of privileges
under Articles 105(3) and 194(3) must weigh while delineating the
privileges under Clauses (1) and (2) of the provisions as well. When
this Court is called upon to answer a question of interpretation of a
provision of the Constitution, it must interpret the text in a manner
that does not do violence to the fabric of the Constitution. This
Court’s opinion in PV Narasimha Rao (supra) hinged on two phrases
in clause (2) of Article 105 of the Constitution. These phrases were
“in respect of” and the following word “anything.” Clause (2) of the
Article reads as follows
“(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
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publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.”
93. In State (NCT of Delhi) v Union of India,56 Dipak Misra, CJ observed
that the Court should interpret a constitutional provision and construe
the meaning of specific words in the text in the context in which the
words occur by referring to the other words of the said provision.
This Court held in that case that the meaning of the word “any” can
be varied depending on the context in which it appears and that
the words “any matter” was not to be understood as “every matter”.
94. The decision in Tej Kiran Jain (supra) interpreted the word “anything”
in Clause (1) of Article 105 to be of the widest amplitude and only
subject to the words appearing after it which were “in Parliament.”
The clause does give wide freedom of speech in Parliament. The
word ‘anything’ cannot be interpreted to allow interference of the
court in determining if the speech had relevance to the subject it was
dealing with at the time the speech was made. In Tej Kiran Jain
(supra) the followers of a religious head who had made a speech
on untouchability filed a suit in the High Court seeking damages for
defamation alleged to have been committed in the Lok Sabha during
a calling attention motion on the speech. This Court held that the
Court cannot dissect a speech made in Parliament and adjudicate
if the speech has a direct relation to the subject matter before it.
Parliament has absolute control over which matters it directs its
attention towards and thereafter the members or persons at liberty
to speak may not be subjected to the fear of prosecution against
anything that they may say in the House.
95. That context evidently changes in Clause (2) of Article 105 which
gives immunity to members of the House and the committees thereof
in any proceeding in any court in respect of “anything” said or any
vote given in the House. MH Beg, CJ in State of Karnataka (supra)
had foreseen a situation where a criminal act may be committed in
the House and had observed that it could not be protected under
the Constitution. The Chief Justice opined that :
“63. […] A House of Parliament or State Legislature cannot
try anyone or any case directly, as a Court of Justice can,

56 [2018] 7 SCR 1 : (2018) 8 SCC 501
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but it can proceed quasi-judicially in cases of contempts
of its authority and take up motions concerning its
“privileges” and “immunities” because, in doing so, it only
seeks removal of obstructions to the due performance of
its legislative functions. But, if any question of jurisdiction
arises as to whether a matter falls here or not, it has to be
decided by the ordinary courts in appropriate proceedings.
For example, the jurisdiction to try a criminal offence,
such as murder, committed even within a House vests
in ordinary criminal courts and not in a House of
Parliament or in a State Legislature. […]”
(emphasis supplied)
96. In K Ajith (supra) a member of the Kerala Legislative Assembly was
accused of climbing over the Speaker’s dais and causing damage
to property during the presentation of the budget by the Finance
Minister of the State. The question which arose before this Court
was whether the member could be prosecuted before a court of
law for his conduct inside the House of the Legislature. This Court
speaking through one of us (DY Chandrachud, J) after exploring the
evolution of law in this regard in the UK observed that:
“36. […] it is evident that a person committing a criminal
offence within the precincts of the House does not hold an
absolute privilege. Instead, he would possess a qualified
privilege, and would receive the immunity only if the action
bears nexus to the effective participation of the member
in the House.”
97. This Court further held that privileges accruing inside the legislature
are not a gateway to claim exemption from the general application
of the law:
“65. Privileges and immunities are not gateways to claim
exemptions from the general law of the land, particularly
as in this case, the criminal law which governs the
action of every citizen. To claim an exemption from
the application of criminal law would be to betray the
trust which is impressed on the character of elected
representatives as the makers and enactors of the
law. The entire foundation upon which the application for
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withdrawal under Section 321 was moved by the Public
Prosecutor is based on a fundamental misconception of
the constitutional provisions contained in Article 194. The
Public Prosecutor seems to have been impressed by the
existence of privileges and immunities which would stand
in the way of the prosecution. Such an understanding
betrays the constitutional provision and proceeds on a
misconception that elected members of the legislature stand
above the general application of criminal law.”
(emphasis supplied)
98. In Lokayukta, Justice Ripusudan Dayal (supra) criminal proceedings
were initiated against administrative officers of the Madhya Pradesh
Legislative Assembly for allegedly engaging in corruption and financial
irregularity. The Speaker of the Assembly initiated proceedings for
breach of privilege against the Lokayukta and vigilance authorities.
This Court while holding that initiation of criminal proceedings for
corruption may not amount to a breach of privilege had opined that:
“48. It is clear that in the matter of the application of
laws, particularly, the provisions of the Lokayukt Act
and the Prevention of Corruption Act, 1988, insofar as
the jurisdiction of the Lokayukt or the Madhya Pradesh
Special Establishment is concerned, all public servants
except the Speaker and the Deputy Speaker of the
Madhya Pradesh Vidhan Sabha for the purposes of
the Lokayukt Act fall in the same category and cannot
claim any privilege more than an ordinary citizen to
whom the provisions of the said Acts apply. […].
49. As rightly submitted by Mr K.K. Venugopal, in India,
there is the rule of law and not of men and, thus,
there is primacy of the laws enacted by the legislature
which do not discriminate between persons to whom
such laws would apply. The laws would apply to all
such persons unless the law itself makes an exception
on a valid classification. No individual can claim privilege
against the application of laws and for liabilities fastened
on commission of a prohibited act.”
(emphasis supplied)
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99. The principle which emerges from the above cases is that the
privilege of the House, its members and the committees is neither
contingent merely on location nor are they merely contingent on the
act in question. 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.
Clause (2) of Article 105 grants immunity “in respect of anything”
said or any vote given. The extent of this immunity must be tested
on the anvil of the tests laid down above. 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 phrase “in respect of”
is significant to delineate the ambit of the immunity granted under
Clause (2) of Article 105.
100. In PV Narasimha Rao (supra) the majority judgment interprets the
phrase “in respect of” 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. As we have noted above, the
interpretation of a phrase which appears in a provision cannot be
interpreted in a way that does violence to the object of the provision.
The majority in PV Narasimha Rao (supra) has taken the object
of Article 105 to be that members of Parliament must have the
widest protection under the law to be able to perform their function
in the House. This understanding of the provision is overbroad and
presumptive of enhanced privileges translating to better functioning
of members of the House.
101. Privileges are not an end in themselves in a Parliamentary form of
government as the majority 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
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of a member to this immunity is its vital connect with the functioning
of the House or committee. 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 Part F of this judgment namely its tether
to the collective functioning of the House and its necessity.
102. The words “in respect of” in Clause (2) of Article 105 apply to the
phrase “anything said or any vote given,” and in the latter part to
a publication by or with the authority of the House. We may not
interpret the words “anything” or “any” without reading the operative
word on which it applies i.e. “said” and “vote given” respectively. The
words “anything said” and “any vote given” apply to an action which
has been taken by a person who has the right to speak or vote in
the House or a committee thereof. This means that a member or
person must have exercised their right to speak or abstained from
speaking inside the House or committee when the occasion arose.
Similarly, a person or member must have exercised their option of
voting in favour, against, or in abstention to claim immunity under
Articles 105(2) and 194(2).
103. The words “anything” and “any” when read with their respective
operative words mean that a member may claim immunity to say as
they feel and vote in a direction that they desire on any matter before
the House. These are absolutely outside the scope of interference by
the courts. The wide meaning of “anything” and “any” read with their
companion words connotes actions of speech or voting inside the
House or committee which are absolute. The phrase “in respect of”
applies to the collective phrase “anything said or any vote given.” The
words “in respect of” means arising out of or bearing a clear relation
to. This may not be overbroad or be interpreted to mean anything
which may have even a remote connection with the speech or vote
given. We, therefore, cannot concur with the majority judgment in
PV Narasimha Rao (supra).
II. The Constitution envisions probity in public life
104. The purpose and object for which the Constitution stipulates
powers, privileges and immunity in Parliament must be borne in
mind. Privileges are essentially related to the House collectively
and necessary for its functioning. Hence, the phrase “in respect of”
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must have a meaning consistent with the purpose of privileges and
immunities. 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. Members of the legislature and persons 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. 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.
105. The minority judgment in PV Narasimha Rao (supra) held that the
words “in respect of” must be understood as “arising out of” and
that a bribe taken by a member of the House cannot be deemed
as arising out of his vote. The minority opined that:
“46. […] The expression “in respect of” in Article 105(2)
has, therefore, to be construed keeping in view the object
of Article 105(2) and the setting in which the expression
appears in that provision.
47. … 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
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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 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.) […]”
(emphasis supplied)
106. The minority then 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 minority goes on to hold that:
“47. […] 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.”
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107. 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 minority opinion in PV Narasimha
Rao (supra) based its view on another perspective which was not
dealt with by the majority. The minority opinion stated that the act
of bribery was the receipt of illegal gratification prior to the making
of the speech or vote inside the House. Interpreting the phrase “in
respect of” to mean “arising out of”, the minority concluded that the
offence of bribery is not contingent on the performance of the illegal
promise. The minority observed that:
“50. … the expression “in respect of” in Article 105(2)
raises the question: Is the liability to be prosecuted arising
from acceptance of bribe by a Member of Parliament for
the purpose of speaking or giving his vote in Parliament
in a particular manner on a matter pending consideration
before the House an independent liability which cannot be
said to arise out of anything said or any vote given by the
Member in Parliament? In our opinion, this question must
be answered in the affirmative. The offence of bribery is
made out against the receiver if he takes or agrees to take
money for promise to act in a certain way. 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 money will be treated
to have committed the offence even when he defaults in
the illegal bargain. For proving the offence of bribery all
that is required to be established is that the offender has
received or agreed to receive money for a promise to act
in a certain way and it is not necessary to go further and
prove that he actually acted in that way.”
108. A Constitution bench of this Court in Kihoto Hollohan v. Zachillhu,57
while deciding on the validity of the Constitution (Fifty Second
Amendment) Act 1985 which introduced the Tenth schedule to the
Indian Constitution opined that the freedom of speech in Parliament

57 [1992] 1 SCR 686 : 1992 Supp (2) SCC 651
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under clause (2) of Article 105 is not violated. This Court understood
the provision to necessarily mean that the politically sinful act of floor
crossing is neither permissible nor immunized under the Constitution.
This Court held that:
“40. The freedom of speech of a Member is not an
absolute freedom. That apart, the provisions of the Tenth
Schedule do not purport to make a Member of a House
liable in any ‘Court’ for anything said or any vote given
by him in Parliament. It is difficult to conceive how Article
105(2) is a source of immunity from the consequences of
unprincipled floor-crossing.
…
43. Parliamentary democracy envisages that matters
involving implementation of policies of the government
should be discussed by the elected representatives of the
people. Debate, discussion and persuasion are, therefore,
the means and essence of the democratic process. During
the debates the Members put forward different points of
view. Members belonging to the same political party may
also have, and may give expression to, differences of
opinion on a matter. Not unoften (sic) the views expressed
by the Members in the House have resulted in substantial
modification, and even the withdrawal, of the proposals
under consideration. Debate and expression of different
points of view, thus, serve an essential and healthy purpose
in the functioning of Parliamentary democracy. At times
such an expression of views during the debate in the
House may lead to voting or abstinence from voting in
the House otherwise than on party lines.”
III. Courts and the House exercise parallel jurisdiction over
allegations of bribery
109. Mr Raju Ramachandran, learned senior advocate on behalf of the
Petitioner, has argued that bribery has been treated as a breach
of privilege by the House which has used its powers to dispense
discipline over bribe-taking members. He argues that immunity for a
vote, speech or conduct in the House of Parliament does not in any
manner leave culpable members blameless or free from sanction.
Such members have been punished including being expelled by the
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House. Mr Ramachandran cites many examples of actions taken by
the House against its members who were found to have received
bribes. In our exposition of the history of parliamentary privileges in
India, we have illustrated how bribery was initially deemed to be a
breach of privilege by the House of Commons in the UK. Based on
the position of law in the UK the British government was uncertain
about the position in India but assumed it to be governed as a
matter of breach of privilege in the absence of an express statutory
enactment. The Report of the Reforms Enquiry Committee in 1924 had
recommended bribery to be made a penal offence so that members
may be prosecuted for crimes before a court of law.
110. The issue of bribery is not one of exclusivity of jurisdiction by the
House over its bribe-taking members. The purpose of a House
acting against a contempt by a member for receiving a bribe serves
a purpose distinct from a criminal prosecution. The purpose of the
proceedings which a House may conduct is to restore its dignity.
Such a proceeding may result in the expulsion from the membership
of the House and other consequences which the law envisages.
Prosecution for an offence operates in a distinct area involving
a violation of a criminal statute. The power to punish for criminal
wrongdoing emanates from the power of the state to prosecute
offenders who violate the criminal law. The latter applies uniformly
to everyone subject to the sanctions of the criminal law of the land.
The purpose, consequences, and effect of the two jurisdictions are
separate. A criminal trial differs from contempt of the House as it is
fully dressed with procedural safeguards, rules of evidence and the
principles of natural justice.
111. We therefore disagree with Mr Ramachandran that the jurisdiction
of the House excludes that of the criminal court for prosecuting an
offence under the criminal law of the land. We hold this because of
our conclusion above that bribery is not immune under clause (2) of
Article 105. A member engaging in bribery commits a crime which
is unrelated to their ability to vote or to make a decision on their
vote. This action may bring indignity to the House of Parliament or
Legislature and may also attract prosecution. What it does not attract
is the immunity given to the essential and necessary functions of a
member of Parliament or Legislature.
112. We may refer to the opinion of SC Agrawal, J who arrived at the
same view in which he was in the minority:
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“45. It is no doubt true that a Member who is found to
have accepted bribe in connection with the business of
Parliament can be punished by the House for contempt.
But that is not a satisfactory solution. In exercise of its
power to punish for contempt the House of Commons
can convict a person to custody and may also order
expulsion or suspension from the service of the House.
There is no power to impose a fine. The power of
committal cannot exceed the duration of the session
and the person, if not sooner discharged by the
House, is immediately released from confinement on
prorogation. (See: May’s Parliamentary Practice, 21st
Edn., pp. 103, 109 and 111.) The Houses of Parliament
in India cannot claim a higher power. The Salmon
Commission has stated that “whilst the theoretical
power of the House to commit a person into custody
undoubtedly exists, nobody has been committed to
prison for contempt of Parliament for a hundred years
or so, and it is most unlikely that Parliament would
use this power in modern conditions”. (para 306) The
Salmon Commission has also expressed the view that
in view of the special expertise that is necessary for
this type of inquiry the Committee of Privileges do
not provide an investigative machinery comparable
to that of a police investigation.”
(emphasis supplied)
113. Therefore, we hold that clause (2) of Article 105 does not grant
immunity against bribery to any person as the receipt of or agreement
to receive illegal gratification is not “in respect of” the function of a
member to speak or vote in the House. Prosecution for bribery is not
excluded from the jurisdiction of the criminal court merely because
it may also be treated by the House as contempt or a breach of its
privilege.
IV. Delivery of results is irrelevant to the offence of bribery
114. Another aspect that arises for consideration is the stage at which
the offence of bribery crystallizes. It has been urged by the Solicitor
General that the offence is complete outside the legislature and is
‘independent’ of the speech or the vote. Therefore, the question of
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privilege does not arise in the first place and the question is answered
by the provisions of the Prevention of Corruption Act, 1988. Similarly,
Mr Gopal Sankarnarayan, learned senior counsel has submitted that
the offence of bribery is complete on receipt of the bribe well before
the vote is given or speech made in Parliament. It has been urged
that the performance of the promise is irrelevant to the offence being
made out, and hence, the distinction made in PV Narasimha Rao
(supra) is entirely artificial.
115. Interestingly, the judgment of the majority in PV Narasimha Rao
(supra) did not consider this question at all. The minority judgment,
on the other hand, discusses this aspect and 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. Agarwal, J observed:
“50. The construction placed by us on the expression “in
respect of” in Article 105(2) raises the question: Is the
liability to be prosecuted arising from acceptance of bribe
by a Member of Parliament for the purpose of speaking
or giving his vote in Parliament in a particular manner
on a matter pending consideration before the House
an independent liability which cannot be said to arise
out of anything said or any vote given by the Member
in Parliament? In our opinion, this question must be
answered in the affirmative. The offence of bribery is
made out against the receiver if he takes or agrees
to take money for promise to act in a certain way.
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 money will be treated to have committed the
offence even when he defaults in the illegal bargain.
For proving the offence of bribery all that is required
to be established is that the offender has received
or agreed to receive money for a promise to act in a
certain way and it is not necessary to go further and
prove that he actually acted in that way.”
(emphasis supplied)
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116. Section 7 of the Prevention of Corruption Act, 1988 reads as follows:
“7. Offence relating to public servant being bribed.
— Any public servant who, —
(a) obtains or accepts or attempts to obtain from
any person, an undue advantage, with the intention
to perform or cause performance of public duty
improperly or dishonestly or to forbear or cause
forbearance to perform such duty either by himself
or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the
improper or dishonest performance of a public duty or
for forbearing to perform such duty either by himself
or another public servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
consequence of accepting an undue advantage from
any person, shall be punishable with imprisonment
for a term which shall not be less than three years
but which may extend to seven years and shall also
be liable to fine.
Explanation 1. —For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an
undue advantage shall itself constitute an offence even
if the performance of a public duty by public servant,
is not or has not been improper.
Illustration. —A public servant, ‘S’ asks a person, ‘P’
to give him an amount of five thousand rupees to
process his routine ration card application on time.
‘S’ is guilty of an offence under this section.
Explanation 2.—For the purpose of this section,—
(i) the expressions “obtains” or “accepts” or “attempts
to obtain” shall cover cases where a person being
a public servant, obtains or “accepts” or attempts to
obtain, any undue advantage for himself or for another
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person, by abusing his position as a public servant or
by using his personal influence over another public
servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts or attempts to obtain
the undue advantage directly or through a third party.”
(emphasis supplied)
117. Under Section 7 of the PC Act, the 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. It is not necessary that the act for which the bribe is given
be actually performed. The first explanation to the provision further
strengthens such an interpretation when it expressly states 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 a public servant being bribed is pegged to receiving or agreeing
to receive the undue advantage and not the actual performance of
the act for which the undue advantage is obtained.
118. It is trite law that illustrations appended to a section are of value and
relevance in construing the text of a statutory provision and they should
not be readily rejected as repugnant to the section.58 The illustration
to the first explanation aids us in construing the provision to mean
that the offence of bribery crystallizes on the exchange of the bribe
and does not require the actual performance of the act. It provides a
situation where “A public servant, ‘S’ asks a person, ‘P’ to give him
an amount of five thousand rupees to process his routine ration card
application on time. ‘S’ is guilty of an offence under this section.” It is
clear that regardless of whether S actually processes the ration card
application on time, the offence of bribery is made out. Similarly, in
the formulation of a legislator accepting a bribe, it does not matter
whether she votes in the agreed direction or votes at all. At the point
in time when she accepts the bribe, the offence of bribery is complete.
119. Even prior to the amendment to the PC Act in 2017, Section 7
expressly delinked the offence of bribery from the actual performance

58 Justice GP Singh, Principles of Statutory Interpretation, 15th Ed. (2021), 136.
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of the act for which the undue advantage is received. The provision
read as follows:
“7. Public servant taking gratification other than legal
remuneration in respect of an official act. —
Whoever, being, or expecting to be a public servant,
accepts or obtains or agrees to accept or attempts to obtain
from any person, for himself or for any other person, any
gratification whatever, other than legal remuneration, as a
motive or reward for doing or forbearing to do any official
act or for showing or forbearing to show, in the exercise
of his official functions, favour or disfavour to any person
or for rendering or attempting to render any service or
disservice to any person, with the Central Government
or any State Government or Parliament or the Legislature
of any State or with any local authority, corporation or
Government company referred to in clause (c) of Section
2, or with any public servant, whether named or otherwise,
shall be punishable with imprisonment which shall be not
less than six months but which may extend to seven years
and shall also be liable to fine.
Explanations. —
…
(d) “A motive or reward for doing”. A person who
receives a gratification as a motive or reward for doing
what he does not intend or is not in a position to do,
or has not done, comes within this expression.
…”
(emphasis supplied)
120. The unamended text of Section 7 of the PC Act also indicates that
the act of “accepting”, “obtaining”, “agreeing to accept” or “agreeing to
obtain” illegal gratification is a sufficient condition. The act for which the
bribe is given does not need to be actually performed. This was further
clarified by Explanation (d) to the provision. In explaining the phrase ‘a
motive or reward for doing’, it was made clear that the person receiving
the gratification does not need to intend to or be in a position to do
or not do the act or omission for which the motive/reward is received.
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121. In Chaturdas Bhagwandas Patel v. State of Gujarat59 a two-
judge Bench of this Court reiterated that to constitute the offence of
bribery, a public servant using his official position to extract illegal
gratification is a sufficient condition. It is not necessary in such a
case for the Court to consider whether the public servant intended
to actually perform any official act of favour or disfavour. In the facts
of the case, the public servant induced the complainant to give a
bribe to get rid of a charge of abduction. It was later revealed that no
complaint had even been registered against the complainant for the
alleged abduction. However, the Court held that the mere demand
and acceptance of the illegal gratification was sufficient, regardless
of whether the recipient of the bribe performed the act for which the
bribe was received.
122. Recently, in Neeraj Dutta v. State (NCT of Delhi)60 a Constitution
Bench listed out the constituent elements of the offence of bribery
under Section 7 of the PC Act (as it stood before the amendment in
2017). Justice BV Nagarathna formulated the elements to constitute
the offence:
“5. The following are the ingredients of Section 7 of the Act:
(i) the accused must be a public servant or expecting
to be a public servant;
(ii) he should accept or obtain or agrees to accept or
attempts to obtain from any person;
(iii) for himself or for any other person;
(iv) any gratification other than legal remuneration; and
(v) as a motive or reward for doing or forbearing to do
any official act or to show any favour or disfavour.”
Consequently, the actual “doing or forbearing to do” the official act
is not a constituent part of the offence. All that is required is that
the illegal gratification should be obtained as a “motive or reward”
for such an action or omission – whether it is actually carried out
or not is irrelevant.

59 [1976] 3 SCR 1052 : (1976) 3 SCC 46
60 [2023] 2 SCR 997 : (2023) 4 SCC 731
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123. During the course of the hearing, a hypothetical question arose in
this regard. What happens in a situation when the bribe is exchanged
within the precincts of the legislature? Would the offence now fall
within the ambit of parliamentary privilege? This question appears to
be ill-conceived. When this Court holds that the offence of bribery is
complete on the acceptance or attempt to accept undue advantage
and is not dependent on the speech or vote, it automatically pushes
the offence outside the ambit of Articles 105(2) and 194(2). This is
not because the acceptance of undue advantage happened outside
the legislature but because the offence is independent of the “vote
or speech” protected by Articles 105(2) and 194(2). The remit of
parliamentary privilege is intricately linked to the nexus of the act to
the ‘vote’ or ‘speech’ and the transaction of parliamentary business.
124. The majority judgment in PV Narasimha Rao (supra) did not delve
into when the offence of bribery is complete or the constituent
elements of the offence. However, on the facts of the case, the
majority held that those MPs who voted as agreed were covered by
the immunity, while those who did not vote at all (Ajit Singh) were
not covered by the immunity under Articles 105(2) and 194(2). This
erroneously links the offence of bribery to the performance of the
act. In fact, in the impugned judgment as well, the High Court has
relied on this position to hold that the appellant is not covered by
the immunity as she eventually did not vote as agreed on and voted
for the candidate from her party.
125. The understanding of the law in the judgment of the majority in PV
Narasimha Rao (supra) creates an artificial distinction between
those who receive the illegal gratification and perform their end of
the bargain and those who receive the same illegal gratification but
do not carry out the agreed task. The offence of bribery is agnostic
to the performance of the agreed action and crystallizes based on
the exchange of illegal gratification. The minority judgment also
highlighted the prima facie absurdity in the paradox created by the
majority judgment. Agarwal, J observed that:
“47. […] 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
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he would enjoy immunity from 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” […]”
(emphasis supplied)
126. Indeed, to read Articles 105(2) and 194(2) in the manner proposed
in the majority judgment results in a paradoxical outcome. Such an
interpretation results in a situation where a legislator is rewarded
with immunity when they accept a bribe and follow through by voting
in the agreed direction. On the other hand, a legislator who agrees
to accept a bribe, but may eventually decide to vote independently
will be prosecuted. Such an interpretation belies not only the text of
Articles 105 and 194 but also the purpose of conferring parliamentary
privilege on members of the legislature.
H. International position on bribery vis-à-vis privileges
127. The above exposition has sought to elucidate the law governing
the subject of parliamentary privileges in India and its implications
on a member of the legislature engaging in bribery. It has been the
leitmotif of most judgments on the subject in India to delve into the
law in other jurisdictions before outlining the position of parliamentary
privileges in India. The jurisprudence on parliamentary privileges
in India has since grown in its own right and we have referred to
the rich jurisprudence of this Court and the history of parliamentary
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privileges in India. However, since both the majority and the minority
judgments in PV Narasimha Rao (supra) have relied heavily on
jurisprudence in foreign jurisdictions, it is appropriate to lay out, in
brief, the evolution and position of the law on privileges as it relates
to the issue of a bribe received by a member of Parliament in other
jurisdictions. We shall first direct our attention to the position of law
in the United Kingdom followed by the United States of America,
Canada, and Australia.
I. United Kingdom
128. As we have explored above, the law on parliamentary privileges in
UK was developed after a struggle by the House of Commons with
the Tudor and Stuart Kings. In The King v. Sir John Elliot,61 at the
peak of the confrontation between the Commons and the King in
1629, the King’s Bench prosecuted three members of the House of
Commons, Sir John Elliot, Denzel Hollis and Benjamin Valentine, for
making seditious speech, disturbing public tranquillity, and violently
holding the Speaker in his position to stop the House from being
adjourned. The members of Parliament were found guilty, fined and
imprisoned. Sir John Elliot was sent to be imprisoned in a tower where
his health declined and he ultimately passed away. The report of the
trial came to be published in 1667 and was noticed by the House of
Commons. The House resolved that the judgment was illegal and
against the privileges of Parliament. On a writ of error presented
by Denzel Hollis, the House of Lords reversed the judgment of the
King’s Bench.
129. With the glorious revolution of 1688, the last of the Stuart Kings,
James, was expelled and a new dynasty was instated. The bitter
struggle led to a firmly established constitutional monarchy with the
House of Commons ultimately claiming both sovereignty and certain
privileges which became ancient and undoubted as a result of the
persistence of the House and its gradual recognition. Erskine May
notes that:
“at the commencement of every Parliament it has been
the custom for the Speaker, in the name, and on behalf
of, the Commons, to lay claim by humble petition to their

61 (1629) 3 St. Tr. 294
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ancient and undoubted rights and privileges; particularly
to freedom of speech in debate, freedom from arrest,
freedom of access to Her Majesty whenever occasion
shall require; and that the most favourable construction
should be placed upon all their proceedings.”62
130. The clause stipulating freedom of speech in Parliament and immunity
from prosecution flows from the Bill of Rights 1689. The Act was a
crucial constitutional initiative by Parliament in England to lay claim
to its status by grounding it in statute. The statute was to secure
Parliament from royal interference in or through the courts. Article
IX of the Bill of Rights stipulates:
“That the freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in
any court or place out of Parliament.”
The clause guarantees freedom of speech in Parliament and protects
it from being “impeached or questioned” in any court or place out
of Parliament.
131. Two aspects of Article IX of the Bill of Rights may be outlined at the
outset. First, the privilege under Article IX in UK is not attached to
individual members only. It immunizes the freedom of speech and
debates or proceedings in Parliament and stipulates that it shall not
be ‘impeached or questioned.’ Secondly, Article IX stipulates that the
proceedings in Parliament may only be ‘impeached or questioned’ in
Parliament. This has led to debate as to whether any material from
Parliamentary proceedings can be placed before the Courts and
whether the jurisdiction of Parliament ousts the jurisdiction of the
Courts. As we shall elucidate below, the position as it stands allows
for material from Parliamentary proceedings in the UK to be placed
before the Court provided that it is not used to imply or argue mala
fides behind the action. The courts in the UK have also interpreted a
narrow scope for the nexus required for non-legislative activities to be
immune. This has led to the holding that the jurisdiction of Parliament
to discipline a member for taking bribe would not automatically oust
the jurisdiction of the courts.

62 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, LexisNexis, 25th
ed. (2019) 242.
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132. The parliamentary immunity attracted to speech made in Parliament
came to be applied in the case of Ex Parte Wason,63 where a
member of Parliament was accused of conspiring to make a statement
which they knew to be false. A person had furnished a petition to
Earl Russel to present before the House of Lords which charged
the Lord Chief Baron of deliberately telling a falsehood before a
Parliamentary committee. This would have led to the removal of the
Lord Chief Baron upon an address by both Houses of Parliament
for such a removal. Earl Russel, Lord Chelmsford, and Lord Chief
Baron conspired to make speeches in the House of Lords to the effect
that the allegations of falsehood were unfounded despite knowing
that the allegations were true. The magistrate refused to take the
applicant’s recognizance on the grounds that a speech made in
Parliament could not disclose any indictable offence. The Queen’s
Bench affirmed the order.
133. Cockburn, CJ opined that speeches made in either House could
not give rise to civil or criminal proceedings regardless of the injury
caused to the interests of a third person. Concurring with the opinion
Lush, J held that:
“[…] I am clearly of opinion that we ought not to allow it
to be doubted for a moment that the motives or intentions
of members of either House cannot be inquired into by
criminal proceedings with respect to anything they may
do or say in the House.”
The Queen’s Bench therefore held that a speech made inside the
House cannot be questioned in any proceeding before a court in
a civil or criminal action and neither can the motives behind the
performance of such acts be questioned.
134. The issue of bribery was only governed by common law till 1889.
Different common law offences were attracted based on corruption
by different offices and their functions. The Public Bodies Corrupt
Practices Act 1889, which applied only to local government bodies,
created the first statutory offence of corruption. Subsequently, the
Prevention of Corruption Act 1906 extended the offence of corruption
to the private sector. Neither of these statutes covered the acceptance

63 (1969) 4 QB 573
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of bribe by a member of Parliament. In the absence of a statute, the
question of taking bribe by a member of Parliament had remained a
question of breach of privilege and only the House was empowered
to take action against such corruption.
135. The Royal Commission on Standards of Conduct in Public Life,
chaired by Lord Salmon, submitted its report in 1976 which inter alia
recommended bringing “corruption, bribery and attempted bribery of
a Member of Parliament acting in his Parliamentary capacity within
the ambit of the criminal law.” While presenting his report to the
House of Lords, Lord Salmon said:
“To my mind equality before the law is one of the pillars of
freedom. To say that immunity from criminal proceedings
against anyone who tries to bribe a Member of Parliament
and any Member of Parliament who accepts the bribe,
stems from the Bill of Rights is possibly a serious mistake.
The passage in the Bill of Rights is: “That the Freedom
of Speech and Debates or Proceedings in Parliament
ought not to be impeached or questioned in any Court
or Place out of Parliament.” Now this is a charter for
freedom of speech in the House. It is not a charter for
corruption. To my mind, the Bill of Rights, for which
no one has more respect than I have, has no more
to do with the topic which we are discussing than
the Merchandise Marks Act. The crime of corruption
is complete when the bribe is offered or given or
solicited and taken.
We have recommended that the Statutes relating to
corruption should all be replaced by one comprehensive
Statute which will sweep away the present anomalies. If
you are not an agent—and Members of Parliament neither
of this House nor of the other place are agents—if you
are not the member of a public body (and we are not
members of public bodies) the Statutes do not touch you.
At Common Law you cannot be convicted of bribery and
corruption unless you are the holder of an office, and most
of us are not the holders of an office.”
(emphasis supplied)
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136. No action was taken by Parliament on this recommendation of the
Salmon Report. However, in R v. Greenway,64 a member of Parliament
was accused of accepting a bribe for helping the interests of a
company. A case to quash the prosecution was filed. The member of
Parliament asserted that his actions were protected by parliamentary
privileges. Rejecting this assertion, Buckley, J held that:
“That a member of Parliament against whom there is
a prime facie case of corruption should be immune
from prosecution in the courts of law is to my mind an
unacceptable proposition at the present time. I do not
believe it to be the law.”
137. Another commission was constituted after allegations of sleaze by
many members of Parliament. The Standing Committee on Standards
in Public Life under the Chairmanship of Lord Nolan submitted its
report in 1994. The report expressed doubt as to who would have
jurisdiction over a bribe taking member of Parliament. To resolve the
jurisdictional question between the House and the court the report
recommended for clarity from Parliament in the form of a statute.
The report recommended that:
“The Salmon Commission in 1976 recommended that
such doubt should be resolved by legislation, but this
has not been acted upon. We believe that it would be
unsatisfactory to leave this issue outstanding when
other aspects of the law of Parliament relating to
conduct are being clarified. We recommend that the
Government should now take steps to clarify the law
relating to the bribery of or the receipt of a bribe by a
Member of Parliament. This could usefully be combined
with the consolidation of the statute law on bribery which
Salmon also recommended, which the government
accepted, but which has not been done. This might be
a task which the Law Commission could take forward.”
(emphasis supplied)
This recommendation was referred by the government to the Law
Commission. The Law Commission submitted its report in 1998

64 [1998] PL 357, referred to as R v Currie in PV Narasimha Rao (supra)
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recommending a new law which makes the offence of corruption
applicable to all. This led to a sequence of events which ultimately
culminated in the enactment of the Bribery Act 2010. The Act covers
instances where members of Parliament engage in corruption.
138. While efforts were being made by lawmakers, the courts in UK
continued answering questions on the scope of Article IX of the Bill
of Rights on members of Parliament who engage in bribery. The
allegations which had led to the constitution of the Nolan committee
came before the courts in R v. Parliamentary Commissioner for
Standards Ex Parte Fayed,65 and in Hamilton v. Al Fayed.66 In
the first case, a person had accused a member of Parliament of
taking corruption money from him while the member was serving as
a minister in the government. The Parliamentary Commissioner of
Standards had cleared a member of Parliament of charges pertaining
to taking of bribes. The complainant filed for leave to apply for judicial
review. The Court of Appeal allowed the application and held that:
“It is important on this application to identify the specific
function of the Parliamentary Commissioner for Standards
which is the subject of complaint on this application. It
is that a Member of Parliament received a corrupt
payment. Mr. Pannick rightly says that parliamentary
privilege would not prevent the courts investigating
issues such as whether or not a Member of Parliament
has committed a criminal offence, or whether a Member
of Parliament has made a statement outside the House
of Parliament which it is alleged is defamatory. He
submits that, consistent with this, the sort of complaint
which the applicant makes in this case is not in relation to an
activity in respect of which the Member of Parliament would
necessarily have any form of parliamentary immunity.”
(emphasis supplied)
139. In Hamilton v. Al Fayed (supra), another case emanating from the
same facts against another member of Parliament, a question arose
as to whether parliamentary privileges may be waived. The Court

65 [1998] 1 WLR 669
66 [2001] 1 A.C. 395
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while returning specific findings on facts, also held that “courts are
precluded from entertaining in any proceedings (whatever the issue
which may be at stake in those proceedings) evidence, questioning
or submissions designed to show that a witness in parliamentary
proceedings deliberately misled Parliament.” In arriving at such a
conclusion the court relied on the judgment in Prebble v. Television
New Zealand.67
140. In the above case, the respondent had transmitted a programme
making allegations against the government that a minister had
conspired with a businessman and public officials to promote
and implement state asset sales with the object of allowing the
businessman to obtain assets at unduly favourable terms. The
minister sued the channel for defamation. The channel sought to
make a defence of truth and place reliance on things said and
acts done in Parliament. It argued that the protection under Article
IX of the Bill of Rights would only protect a member from being
held liable for his speech in either House. However, they could
be placed on record as a defence if it is not being used to inflict
liability upon a speech made in either House. The Privy Council
held that parties to a litigation cannot bring into question anything
said or done in the House or impute any motive to those actions.
The Court allowed reliance on the official publication of the House
proceedings to the extent that they are not used to suggest that
the words were improperly spoken, or any statute was passed for
improper use.
141. The question of reliance on legislative material was further weighed
in favour of the legislature in 2009. In Office of Government
Commerce v. Information Commissioner (Attorney General
intervening),68 the Queen’s Bench Division held that opinions of
parliamentary committees would be irrelevant before a court given
the nature of their work. This holding was influenced by the words
and associated history of Article IX of the Bill of Rights, which is
worded more broadly than Clause (2) of Articles 105 and 194 of the
Constitution of India. The minority opinion in PV Narasimha Rao
(supra) throws light on the issue as follows:

67 (1994) 3 ALL ER 407
68 [2009] 3 WLR 627
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“41. […] The protection given under clause (2) of Article
105 is narrower than that conferred under Article 9 of the
Bill of Rights in the sense that the immunity conferred
by that clause is personal in nature and is available to
the Member in respect of anything said or in any vote
given by him in the House or any committee thereof. The
said clause does not confer an immunity for challenge
in the court on the speech or vote given by a Member
of Parliament. The protection given under clause (2) of
Article 105 is thus similar to protection envisaged under
the construction placed by Hunt, J. in R. v. Murphy [(1986)
5 NSWLR 18] on Article 9 of the Bill of Rights which has
not been accepted by the Privy Council in Prebble v.
Television New Zealand Ltd. [(1994) 3 All ER 407, PC]
The decision in Ex p Wason [(1869) 4 QB 573 : 38 LJQB
302] which was given in the context of Article 9 of the Bill
of Rights, can, therefore, have no application in the matter
of construction of clause (2) of Article 105. […]”
The issue of whether courts can rely on observations contained in
Parliamentary committee reports now stands settled by a Constitution
Bench of this Court in Kalpana Mehta (supra).
142. The majority judgment in PV Narasimha Rao (supra) relied on the
earlier cases from the UK which generally interpret Article IX to
protect speech and debate. Relying on these judgments, the majority
extrapolated a general principle of not allowing the production of
anything before the courts which may be casually or incidentally
related to the acts of a legislator. The Court then grounded this
principle by interpreting Article 105(2) in an overbroad manner to
attach immunity for bribes received in furtherance of legislative
functions. The Court brushed aside the opinion of Buckley, J in R v.
Greenway on the ground that it remains to be tested in appeal. The
majority therefore failed to contextually apply the different clauses
governing the freedom of speech in UK and India. The cases referred
to by the majority, while helpful to understand the law generally, do
not aid in immunizing bribes received for influencing of votes. As we
have noted above, one of the reasons behind the claim of exclusive
jurisdiction over bribery by the Parliament was that members of
Parliament were not covered by the anti-corruption statute. However,
a constitutional interpretation has to answer whether, in the absence
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of a statute, a member of Parliament can claim immunity for taking
corruption money and thereby influence his vote.
143. Since the judgment of this Court in PV Narasimha Rao (supra) the
courts in UK have narrowly interpreted the immunity under Article IX.
In R v. Chaytor,69 members of Parliament were prosecuted for false
accounting for having submitted fake claims and making financial
gains. The UK Supreme Court held that the purpose of Article IX of
the Bill of Rights is to protect the freedom of speech in the House.
The Court opined that the provision must be given a narrower view
and held that the prosecution would not violate the privilege of
Parliament. The Court relied on the holding in Greenway (supra)
that the nexus between a bribe and a speech made in Parliament
does not oust the jurisdiction of the courts. The Court therefore
opined that submitting a claim for expenses and taking part in such
proceedings has an even more tenuous link to parliamentary privileges
and cannot be immune from prosecution. The Court applied the test
of whether the action of the member of Parliament which was being
questioned bore on the core or essential function of the Parliament.
Lord Phillip opined that:
“47. The jurisprudence to which I have referred is sparse
and does not bear directly on the facts of these appeals. It
supports the proposition, however, that the principal matter
to which article 9 is directed is freedom of speech and
debate in the Houses of Parliament and in parliamentary
committees. This is where the core or essential business
of Parliament takes place. In considering whether
actions outside the Houses and committees fall within
parliamentary proceedings because of their connection
to them, it is necessary to consider the nature of that
connection and whether, if such actions do not enjoy
privilege, this is likely to impact adversely on the core
or essential business of Parliament.”
(emphasis supplied)
144. Lord Rodger in the course of his concurring opinion further shed light
on the issue being amenable to the contempt jurisdiction of the House

69 [2010] 3 WLR 1707
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of Parliament. Lord Rodger held that this would be an overlapping
jurisdiction and would not amount to an ouster of the court’s jurisdiction.
In Makudi v. Baron Triesman of Trottenham,70 the Court of Appeal
held that a statement made by a witness in public which repeated his
testimony before a parliamentary committee would not attract immunity
as it was an extra-parliamentary speech which was too remote to the
utterance before the parliamentary committee. The Court also opined
when the immunity may be attracted. The Court held that:
“25. I accept, however, that there may be instances
where the protection of Article 9 indeed extends to extra-
Parliamentary speech. No doubt they will vary on the
facts, but generally I think such cases will possess these
two characteristics: (1) a public interest in repetition of
the Parliamentary utterance which the speaker ought
reasonably to serve, and (2) so close a nexus between the
occasions of his speaking, in and then out of Parliament,
that the prospect of his obligation to speak on the second
occasion (or the expectation or promise that he would do
so) is reasonably foreseeable at the time of the first and
his purpose in speaking on both occasions is the same
or very closely related. […]”
145. The courts in the UK have, overtime, advanced a narrower view
than the earlier cases governing the field of privileges. They have
interpreted a narrow scope for the nexus required for non-legislative
activities to be immune. This has led to the holding that the jurisdiction
of courts is not ousted by the immunity of members or the ability of
the House to take contempt action against bribery.
II. United States of America
146. Parliamentary privileges in the United States of America emanate
from Section 6 of Article 1 in the Constitution. The relevant part
of the provision, referred to as the Speech and Debate Clause, is
influenced by Article IX of the English Bill of Rights 1689. The clause
reads as follows:
“The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by

70 [2014] QB 839
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Law, and paid out of the Treasury of the United States.
They shall in all Cases, except Treason, Felony and
Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of their respective Houses,
and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be
questioned in any other Place.”
(emphasis supplied)
Courts in the US have given a broad interpretation to the Speech
and Debate clause so far as legislative acts of the members of
Congress are concerned. Beyond that the Courts have held that
a member of Congress may be liable under a criminal statute of
general application. All that is prohibited is reliance on the official
acts of the member to prove the prosecution case.
147. In United States v. Thomas F Johnson,71 a member of Congress
was accused of conflict of interest and conspiring to defraud the
United States. The allegation against Johnson was that he entered
into a conspiracy to exert influence and obtain dismissal of pending
indictments against a saving and loan company and its officers
on mail fraud charge. As part of the conspiracy, Johnson made
speeches favourable to independent savings and loan associations
in the House. The accused was found guilty by the trial court. His
conviction was set aside by the Court of Appeals for the Fourth
Circuit on the ground that the allegations were barred under the
Speech and Debate Clause from being raised in the Court. The US
Supreme Court in interpreting the Speech and Debate Clause held
that the Government may not use the speech made by a member of
Congress or question its motivation in a court of law. However, the
prosecution may make a case without relying on the speech given
by the Congressman. The Court opined that its decision does not
apply to a prosecution for violating a general criminal law which ‘does
not draw in question the legislative acts of the defendant member
of Congress or his motives for performing them.’
148. The US Supreme Court has relied on Johnson (supra) in subsequent
cases involving bribery by members of Congress to hold that they

71 383 US 169 (1966)
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may be prosecuted so long as they do not rely on a speech or vote
given by the legislator. In United States v. Brewster,72 a Senator
was accused of accepting a bribe in return for being influenced
in his performance of official acts with respect to postage rate
legislation. The trial court dismissed the charges on the ground that
the Senator attracted parliamentary privileges. The US Supreme
Court by majority held that the Speech and Debate Clause prevented
prosecutors from introducing evidence that the member of Congress
actually performed some legislative act, such as making a speech
or introducing legislation, as part of a corrupt plan, but that other
evidence might establish that the member had violated the anti-
corruption laws. The Court held that:
“43. The authors of our Constitution were well aware of the
history of both the need for the privilege and the abuses
that could flow from too sweeping safeguards. In order
to preserve other values, they wrote the privilege so
that it tolerates and protects behavior on the part of
Members not tolerated and protected when done by
other citizens, but the shield does not extend beyond
what is necessary to preserve the integrity of the
legislative process. […]
…
60. It is beyond doubt that the Speech or Debate Clause
protects against inquiry into acts that occur in the regular
course of the legislative process and into the motivation for
those acts. So expressed, the privilege is broad enough
to insure the historic independence of the Legislative
Branch, essential to our separation of powers, but
narrow enough to guard against the excesses of
those who would corrupt the process by corrupting
its Members. […]
…
62. The question is whether it is necessary to inquire into
how appellee spoke, how he debated, how he voted, or
anything he did in the chamber or in committee in order

72 408 US 501 (1972)
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to make out a violation of this statute. The illegal conduct
is taking or agreeing to take money for a promise to act
in a certain way. There is no need for the Government
to show that appellee fulfilled the alleged illegal bargain;
acceptance of the bribe is the violation of the statute, not
performance of the illegal promise.”
(emphasis supplied)
The US Supreme Court therefore opined that the privileges
exercised by members of Congress individually was to preserve the
independence of the legislature. The independence was exactly what
would be compromised if the Speech and Debate Clause were to
be understood as providing immunity to acts of bribery by members
of Congress. Therefore, immunity under the Constitution is only
attracted to actions which are clearly a part of the legislative process.
149. The Court in Brewster (supra) was conscious of the potential misuse
of investigating powers by the Executive but held that a House acting
by a majority would be more detrimental to the rights of the accused
if it were left to be the final arbiter. The Court noted that a member
of Congress would be deprived of the procedural safeguards that
Court affords to accused persons. The Court further held that:
“58. We would be closing our eyes to the realities of the
American political system if we failed to acknowledge that
many non-legislative activities are an established and
accepted part of the role of a Member, and are indeed
‘related’ to the legislative process. But if the Executive
may prosecute a Member’s attempt, as in Johnson,
to influence another branch of the Government in
return for a bribe, its power to harass is not greatly
enhanced if it can prosecute for a promise relating to
a legislative act in return for a bribe. We therefore see
no substantial increase in the power of the Executive and
Judicial Branches over the Legislative Branch resulting
from our holding today. […]
59. […] As we noted at the outset, the purpose of the
Speech or Debate Clause is to protect the individual
legislator, not simply for his own sake, but to preserve
the independence and thereby the integrity of the
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legislative process. But financial abuses by way of
bribes, perhaps even more than Executive power,
would gravely undermine legislative integrity and
defeat the right of the public to honest representation
depriving the Executive of the power to investigate and
prosecute and the Judiciary of the power to punish
bribery of Members of Congress is unlikely to enhance
legislative independence. […]
…
63. Taking a bribe is, obviously, no part of the legislative
process or function; it is not a legislative act. It is not, by
any conceivable interpretation, an act performed as a part
of or even incidental to the role of a legislator. It is not
an ‹act resulting from the nature, and in the execution,
of the office.› Nor is it a ‹thing said or done by him, as
a representative, in the exercise of the functions of that
office,› 4 Mass., at 27. Nor is inquiry into a legislative
act or the motivation for a legislative act necessary
to a prosecution under this statute or this indictment.
When a bribe is taken, it does not matter whether
the promise for which the bribe was given was for
the performance of a legislative act as here or, as
in Johnson, for use of a Congressman’s influence
with the Executive Branch. And an inquiry into the
purpose of a bribe ‘does not draw in question the
legislative acts of the defendant member of Congress
or his motives for performing them.’ 383 U.S., at 185,
86 S.Ct., at 758.
64. Nor does it matter if the Member defaults on his
illegal bargain. To make a prima facie case under this
indictment, the Government need not show any act
of appellee subsequent to the corrupt promise for
payment, for it is taking the bribe, not performance of
the illicit compact, that is a criminal act. If, for example,
there were undisputed evidence that a Member took a
bribe in exchange for an agreement to vote for a given
bill and if there were also undisputed evidence that he,
in fact, voted against the bill, can it be thought that this
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alters the nature of the bribery or removes it from the area
of wrongdoing the Congress sought to make a crime?
…
67. Mr. Justice BRENNAN suggests that inquiry into
the alleged bribe is inquiry into the motivation for a
legislative act, and it is urged that this very inquiry was
condemned as impermissible in Johnson. That argument
misconstrues the concept of motivation for legislative
acts. The Speech or Debate Clause does not prohibit
inquiry into illegal conduct simply because it has
some nexus to legislative functions. In Johnson, the
Court held that, on remand, Johnson could be retried
on the conspiracy-to-defraud count, so long as evidence
concerning his speech on the House floor was not
admitted. […].”
(emphasis supplied)
The Court therefore rejected the idea that anything having a nexus
to legislative functions would automatically attract immunity under
the Speech and Debate Clause of the US Constitution.
150. In Gavel v. United States,73 certain secret documents were made
part of the record of a sub-committee hearing in the US Senate by
Senator Gavel. He then published the entire document in a private
publication. An aide to the Senator was subpoenaed by the grand
jury which was investigating the matter. The question which arose for
consideration of the US Supreme Court was whether the aide of the
Senator enjoyed any immunity under the Speech and Debate Clause
and to what extent could he be questioned. The US Supreme Court
held that given the expansive nature of legislative work, an aide to
a member of Congress would be protected under the Speech and
Debate Clause but only to the extent that it pertained to aiding the
legislator in discharge of his legislative functions. The Court further
held that private publication of the document was not a necessary
part of the functions of the Senator and no immunity would extend
in that regard. The Court held that:

73 408 US 606 (1972)
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“26. Legislative acts are not all-encompassing. The heart
of the Clause is speech or debate in either House. Insofar
as the Clause is construed to reach other matters,
they must be an integral part of the deliberative
and communicative processes by which Members
participate in committee and House proceedings with
respect to the consideration and passage or rejection
of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction
of either House. As the Court of Appeals put it, the courts
have extended the privilege to matters beyond pure speech
or debate in either House, but ‘only when necessary to
prevent indirect impairment of such deliberations.’ United
States v. Doe, 455 F.2d, at 760.
…
27. Here, private publication by Senator Gravel through the
cooperation of Beacon Press was in no way essential to
the deliberations of the Senate; nor does questioning as to
private publication threaten the integrity or independence
of the Senate by impermissibly exposing its deliberations
to executive influence. The Senator had conducted his
hearings; the record and any report that was forthcoming
were available both to his committee and the Senate.
Insofar as we are advised, neither Congress nor the full
committee ordered or authorized the publication. [ The sole
constitutional claim asserted here is based on the Speech
or Debate Clause. We need not address issues that may
arise when Congress or either House, as distinguished
from a single Member, orders the publication and/or
public distribution of committee hearings, reports, or other
materials. Of course, Art. I, § 5, cl. 3, requires that each
House ‹keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may
in their Judgment require Secrecy . . ..› This Clause has
not been the subject of extensive judicial examination.
See Field v. Clark, 143 U.S. 649, 670–671, 12 S.Ct. 495,
496–497, 36 L.Ed. 294 (1892); United States v. Ballin, 144
U.S. 1, 4, 12 S.Ct. 507, 508, 36 L.Ed. 321 (1892).] We
cannot but conclude that the Senator’s arrangements with
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Beacon Press were not part and parcel of the legislative
process.”
(emphasis supplied)
151. The Court in Gavel (supra) applied the same standard it did in
Brewster (supra) to hold that only acts which are essential to the
deliberations of the House or in discharge of the functions vested
under the Constitution are immune from prosecution before a court
of law. Other acts which may in some way be related to the speech
or vote of a legislator will not be protected under the Speech and
Debate Clause unless they were essential to the legislator’s function.
The Court therefore held a consistent position that members of
Congress would only have immunity under the Constitution for their
‘sphere of legitimate legislative activity.’
152. In United States v. Helstoski, 74 a member of the House of
Representatives was accused of accepting money in return for
introducing certain private bills to suspend the application of
immigration laws. Relying on its previous rulings in Johnson (supra),
Brewster (supra) and Gavel (supra) the US Supreme Court held
that the purpose of the Speech and Debate Clause was to free
the legislator from executive and judicial oversight that realistically
threatens to control his conduct as a legislator. The Court reaffirmed
the position of American law that material from the legislative acts
of the accused Congressman may not be relied on or placed before
the grand jury but proof of bribe and promise to commit a future
legislative act may be investigated as they do not constitute an
essential function of the legislator in discharge of his duties.
153. We may helpfully refer to another decision before concluding the
analysis of the position of law in the United States. In Hutchinson v.
Proxmire,75 a Senator would release a publication highlighting what
he perceived to be “wasteful government spending”. The Senator
made a speech on the floor of the Senate and had it published in
the press. The complainant, who was funded by public institutes for
his research, was named by the Senator. The press release was
circulated to over one hundred thousand people including agencies

74 442 US 477 (1979)
75 439 US 1066 (1979)
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which funded the research of the complainant. The complainant
filed a suit claiming loss of respect in his profession, loss of income
and the ability to earn income in the future. The District Court
granted summary judgment in favour of the Senator, holding that
the publication fell under the ‘information function’ of Congress and
would be immune under the Speech and Debate Clause.
154. The US Supreme Court held that the intention of the Speech and
Debate Clause was not to create an absolute privilege in favour of
members of Congress. The clause, the Court held, is only attracted to
“legislative activities” and would not protect republishing of defamatory
statements. The Court held that:
“Whatever imprecision there may be in the term “legislative
activities,” it is clear that nothing in history or in the
explicit language of the clause suggests any intention
to create an absolute privilege from liability or suit for
defamatory statements made outside the Chamber.
…
Claims under the clause going beyond what is needed
to protect legislative independence are to be closely
scrutinized.
…
Indeed, the precedents abundantly support the conclusion
that a Member may be held liable for republishing
defamatory statements originally made in either House.
We perceive no reason from that long-established rule.”
(emphasis supplied)
155. The principle which emerges from the approach taken with regard
to privileges in the United States is that a member of Congress is
not immune for engaging in bribery to perform legislative acts in
terms of speech or vote. The Speech and Debate Clause does not
give any absolute immunity to a legislator with respect to all things
bearing a nexus with legislative activity. The immunity is attracted
only to those functions which are essential and within the legitimate
sphere of legislative business. The only privilege a Congressperson
may attract in a prosecution is that the content of the speech, vote or
legislative acts may not be produced as evidence by the prosecution.
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156. The majority judgment in PV Narasimha Rao (supra) has interpreted
Johnson (supra) and the dissenting opinion in Brewster (supra) to
arrive at the same conclusion which it did upon a reflection of the
law in the UK. Here too, the majority judgment fails on two accounts.
Firstly, it fails to account for the fact that the Speech and Debate
Clause which is substantially borrowed from Article IX of the English
Bill of Rights confers immunity to the speech and vote made in
parliament. The understanding arrived at in the majority judgment
was not informed by the evolution of law in a line of cases in the
United States. On the contrary, the majority judgment relied solely
on the dissenting opinion in Brewster (supra) without adequate
substantiation for such reliance. Secondly, the majority judgment
has extended its interpretation of the Speech and Debate Clause
and pigeon-holed the interpretation of Article 105(2) to satisfy this
understanding.
III. Canada
157. The precise question of whether bribing legislators to vote in a
certain direction falls within the ambit of parliamentary privilege was
adjudicated upon by the Queen’s Bench in R v. Bunting et al.76 In
that case, the defendants had sought the quashing of an indictment
for conspiracy to change the Government of the Province of Ontario
by bribing members of the legislature to vote against the government.
The Court conclusively held that the offence of bribery and conspiracy
to bribe members of the legislature fell within the jurisdiction of the
court and such an inquiry would not encroach on parliamentary
privilege. Further, it was held that if the defendants were proceeded
against by the court, they may also be parallelly inquired against by
the legislature for violation of rights and privileges. The proceedings
are for different offences, may be conducted in their own right and
such situations do not constitute a case of double punishment or
double jeopardy. The Court (speaking through Wilson, CJ) held:
“It is to my mind a proposition very clear that this Court
has jurisdiction over the offence of bribery as at the
common law in a case of this kind, where a member
of the Legislative Assembly is concerned either in
the giving or in the offering to give a bribe, or in the

76 [1885] 17 O.R. 524
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taking of it for or in respect of any of his duties as a
member of that Assembly; and it is equally clear that
the Legislative Assembly has not the jurisdiction which
this Court has in a case of the kind; and it is also quite
clear that the ancient definition of bribery is not the proper
or legal definition of that offence.
…
There is nothing more definitely settled than that the
House of Commons in England, and the different colonial
Legislatures, have not, and never have had, criminal
jurisdiction.
…
But if these three persons had agreed that the two members
of the House of Lords should make these false statements,
or vote in any particular manner, in consideration of a
bribe paid or to be paid to them, that would have been a
conspiracy to do an act, not necessarily illegal perhaps,
but to do the act by illegal means, bribery being an offence
against the law; and the offence of conspiracy would have
been complete by reason of the illegal means by which the
act was to be effected. That offence could have been
inquired into by the Court, because the inquiry into
all that was done would have been of matters outside
of the House of Lords, and there could therefore be
no violation of, or encroachment in any respect upon,
the lex parliament”.
(emphasis supplied)
158. The decision in Bunting (supra) was before the Court in PV
Narasimha Rao (supra). The Minority expressly relied on the decision,
recognizing that bribing a legislator was treated as a common law
offence under the criminal law in Canada and Australia and a legislator
can be prosecuted in a criminal court for the offence. Agarwal, J noted:
“54. […] In Australia and Canada where bribery of a
legislator was treated as an offence at common law the
courts in White [13 SCR (NSW) 332], Boston [(1923) 33
CLR 386] and Bunting [(1884-85) 7 Ontario Reports 524]
had held that the legislator could be prosecuted in the
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criminal court for the said offence. It cannot, therefore,
be said that since acceptance of bribe by a Member
of the House of Commons was treated as a breach
of privilege by the House of Commons and action
could be taken by the House for contempt against the
Member, the Members of the House of Commons, on
26-1-1950, were enjoying a privilege that in respect of
conduct involving acceptance of bribe in connection
with the business of Parliament, they could only be
punished for breach of privilege of the House and they
could not be prosecuted in a court of law. Clause (3)
of Article 105 of the Constitution cannot, therefore,
be invoked by the appellants to claim immunity from
prosecution in respect of the charge levelled against
them.
55. […] In the earlier part of the judgment we have found
that for the past more than 100 years legislators in
Australia and Canada are liable to be prosecuted for
bribery in connection with their legislative activities
and, with the exception of the United Kingdom, most of
the Commonwealth countries treat corruption and bribery
by Members of the legislature as a criminal offence.
In the United Kingdom also there is a move to change
the law in this regard. There appears to be no reason
why legislators in India should be beyond the pale
of laws governing bribery and corruption when all
other public functionaries are subject to such laws.
We are, therefore, unable to uphold the above contention
of Shri Thakur.”
(emphasis supplied)
The majority judgment, on the other hand, makes a reference to
Bunting (supra) but chooses to not rely on the judgment or any
other judgment by Canadian courts placed on record in the case.
159. Another interesting line of jurisprudence, expanded by the Supreme
Court of Canada after the decision in PV Narasimha Rao (supra), is
relevant to answer the question before this Court. While dealing with
the remit of parliamentary privilege, the Supreme Court of Canada
has adopted the test of ‘necessity’ in a formulation similar to the test
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formulated in Part F of this judgment. In this regard, the landmark
decision of the Supreme Court of Canada in Canada (House of
Commons) v. Vaid,77 may be noted in some detail.
160. In the above case, the former Speaker of the House of Commons
was accused of dismissing his chauffeur for reasons that allegedly
constituted workplace discrimination under the Canadian Human
Rights Act, 1985. This was resisted by the House of Commons which
contended that such an inquiry constituted an encroachment on
parliamentary privilege and the hiring and firing of House employees
are “internal affairs” which may not be questioned or reviewed by
any tribunal or court apart from the House itself. The court did not
accept this contention.
161. The Supreme Court of Canada held that legislative bodies do not
constitute enclaves shielded from the ordinary law of the land. The
party that seeks to rely on immunity under the broader umbrella of
parliamentary privilege has the onus of establishing its existence. In
Canada, the House of Commons in the UK is used as the benchmark
to determine the existence of parliamentary privilege. Therefore,
to determine whether a privilege does in fact exist, the first step
is to scrutinize if it is authoritatively established in relation to the
Canadian Parliament or the House of Commons. If the existence is
not established, the doctrine of necessity is to be applied to determine
if the act is protected by parliamentary privilege. In essence, the
legislature or the member seeking immunity must prove that the
activity for which privilege is claimed is closely and directly connected
with the fulfilment by the legislature of its functions and that external
interference would impact the autonomy required for the assembly
to carry out its functions with “dignity and efficiency”.
162. The Supreme Court of Canada held as follows:
“While much latitude is left to each House of Parliament,
such a purposive approach to the definition of privilege
implies important limits. There is general recognition,
for example, that privilege attaches to “proceedings in
Parliament”. Nevertheless, as stated in Erskine May (19th
ed. 1976), at p. 89, not “everything that is said or done within

77 [2005] 1 SCR 667
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the Chamber during the transaction of business forms part
of proceedings in Parliament. Particular words or acts may
be entirely unrelated to any business which is in course of
transaction or is in a more general sense before the House
as having been ordered to come before it in due course.”
(This passage was referred to with approval in Re Clark.)
Thus in R. v. Bunting (1885), 7 O.R. 524, for example,
the Queen’s Bench Division held that a conspiracy to bring
about a change in the government by bribing members of
the provincial legislature was not in any way connected
with a proceeding in Parliament and, therefore, the court
had jurisdiction to try the offence. Erskine May (23rd ed.)
refers to an opinion of “the Privileges Committee in 1815
that the re-arrest of Lord Cochrane (a Member of the
Commons) in the Chamber (the House not sitting) was
not a breach of privilege. Particular words or acts may
be entirely unrelated to any business being transacted or
ordered to come before the House in due course.
…
All of these sources point in the direction of a similar
conclusion. In order to sustain a claim of parliamentary
privilege, the assembly or member seeking its
immunity must show that the sphere of activity for
which privilege is claimed is so closely and directly
connected with the fulfilment by the assembly or
its members of their functions as a legislative and
deliberative body, including the assembly’s work
in holding the government to account, that outside
interference would undermine the level of autonomy
required to enable the assembly and its members to
do their work with dignity and efficiency.”
(emphasis supplied)
163. Similarly, the decision of the Supreme Court of Canada in Chagnon
v. Syndicat de la fonction publique et parapublique du Québe,78
relies on Vaid (supra) and adopts the test of ‘necessity’ in similar

78 [2018] 2 SCR 687
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terms. In that case, security guards who were employed by the
National Assembly of Québec were dismissed from service by the
President of the assembly. The dismissal was assailed before the
labour arbitrator. This was objected to on the ground that the decision
to dismiss the guards is not subject to review and is protected
by parliamentary privilege. The Supreme Court of Canada, in its
majority opinion, held that the dismissal of the security guards was
not protected by parliamentary privilege. The Court opined that the
inherent nature of parliamentary privilege indicates that its scope
must be anchored to its rationale, i.e. to protect legislatures in the
discharge of their legislative and deliberative functions. A court
recognizing a parliamentary privilege entails that the court cannot
review its exercise. Therefore, a purposive approach must be adopted
to ensure that it is only as broad as necessary to perform the
assembly’s constitutional role. In the factual context, the Court held
that the necessity of a parliamentary privilege over the management
of the security guards could not be established. The management
of guards could be dealt with under ordinary law without impeding
the security of the assembly or its ability to deliberate on issues.
IV. Australia
164. The position of law in Australia has been consistent since 1875. The
courts have held that an attempt to bribe a member of the legislature
to influence their votes constitutes a criminal offence under common
law. The decision of the Supreme Court of New South Wales in R
v. Edward White79 was a landmark in this regard. Sir James Martin
(CJ) observed:
“The point now for the consideration of the Court, whether
or not the objection so taken is a valid one, or in other
words, whether an attempt to bribe a member of the
Legislative assembly is a criminal offence. I am clearly
of the opinion that such an attempt is a misdemeanor
at common law. Although no case can be found on an
information or indictment against a person for attempting
to bribe a member of the Legislature, there are several
cases which show that such an attempt is an offence.

79 13 SCR (NSW) 332
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…
The injury to the public is more direct and is certainly
greater in tampering with the person actually elected than
with the persons who elect him. A person sent into the
Legislature by means of votes corruptly obtained
may be an able and conscientious member; but a
legislator who suffers his vote to be influenced by a
bribe does that which is calculated to sap the utility
of representative institutions at their foundation. It
would be a reproach to the common law if the offer to,
or the acceptance of, a bribe by such a person were not
an offence.”
(emphasis supplied)
Similarly, Justice Hargrave also observed as follows:
“These numerous modern authorities clearly establish that
the old common law prohibition against bribery has been
long since extended beyond mere judicial officers acting
under oaths of office, to all persons whatever holding offices
of public trust and confidence; and it seems impossible to
understand why members of our Legislative Assembly
and Legislative council, who are entrusted with the
public duty of enacting our laws, should not be at
least equally protected from bribery and corruption as
any Judge or constable who has to carry out the law.”
(emphasis supplied)
165. Subsequently, the decision in White (supra) was also followed by
the High Court of Australia in R v. Boston.80 This was a case where
certain private parties entered into an agreement to bribe members
of the legislative assembly such that they would use their official
position to secure the acquisition of certain estates. The argument
that was advanced before the Court was unique. The appellant did
not dispute the proposition established in White (supra) that an
agreement to pay money to a member of the assembly to influence
their vote would amount to a criminal offence. However, it was

80 (1923) 33 CLR 386
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submitted that the bribe in this case was to induce the member of the
assembly to use his position outside and not inside the assembly in
favour of the bribe-givers. The Court rejected the artificial distinction
between illegal gratification to perform acts inside the parliament and
acts outside the parliament and held that in both cases, the act of
bribery impairs the capacity of the member to exercise a disinterested
judgment, thereby, impacting their ability to act as a representative
of the people. Knox, CJ held:
“[…] In my opinion, the payment of money to, and the
receipt of money by, a member of Parliament to induce
him to use his official position, whether inside or outside
Parliament, for the purpose of influencing or putting
pressure on a Minister or other officer of the Crown to
enter into or carry out a transaction involving payment
of money out of the public funds, are acts tending to
the public mischief, and an agreement or combination
to do such acts amounts to a criminal offence. From the
point of view of tendency to public mischief I can see no
substantial difference between paying money to a member
to induce him to use his vote in Parliament in a particular
direction and paying him money to induce him to use his
position as a member outside Parliament for the purpose
of influencing or putting pressure on Ministers.
…
Payment of money to a member of Parliament to induce him
to persuade or influence or put pressure on a Minister to
carry out a particular transaction tends to the public mischief
in many ways, irrespective of whether the pressure is to
be exercised by conduct inside or outside Parliament. It
operates as an incentive to the recipient to serve the interest
of his paymaster regardless of the public interest, and to use
his right to sit and vote in Parliament as a means to bring
about the result which he is paid to achieve. It impairs his
capacity to exercise a disinterested judgment on the
merits of the transaction from the point of view of the
public interest and makes him a servant of the person
who pays him, instead of a representative of the people.”
(emphasis supplied)
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166. Courts in Australia have also followed the position of law laid down
by the Supreme Court of the UK in Chaytor (supra) that the House
of Commons does not have exclusive jurisdiction to deal with criminal
conduct by members of the House. The only exception to such cases
is when the existence of parliamentary privilege makes it virtually
impossible to determine the issues or if the proceedings interfere
with the ability of the House to conduct its legislative and deliberative
business. For instance, in Obeid v. Queen81, the appellant was
charged with the offence of misconduct in office by using his position
to gain a pecuniary advantage for himself. One of the grounds argued
before the Court of Criminal Appeal for New South Wales was that
since Parliament had the power to deal with such contraventions
by members of the assembly, the court should have refrained from
exercising jurisdiction. The Court followed Chaytor (supra) to hold that
the Court and Parliament may have concurrent jurisdiction in respect of
criminal matters and there was no law which prohibited the court from
determining matters that do not constitute “proceedings in parliament”.
167. The decisions in White (supra) and Boston (supra) were placed
before the Court in PV Narasimha Rao (supra). The minority
judgment discussed both judgments in detail and relied on them to
conclude that giving a bribe to influence a legislator to vote or speak
in Parliament constitutes a criminal offence, which is not protected
by Articles 105(2) and 194(2). The majority judgment, however, does
not refer to the Australian precedents.
I. Elections to the Rajya Sabha are within the remit of Article
194(2)
168. We may lastly direct our attention to an argument raised by Mr
Venkataramani, the learned Attorney General. The Attorney General
submitted that the decision PV Narasimha Rao (supra) is inapplicable
to the facts of the present case. The factual situation in PV Narasimha
Rao (supra) pertained to a no-confidence motion, while in the present
case, the appellant voted to fill vacant seats in the Council of States
or the Rajya Sabha. In the counter affidavit filed by the Respondent,
it was submitted that since polling for the Rajya Sabha Election was
held outside the house in the lobby, it cannot be considered as a
proceeding of the House like a no-confidence motion. However,

81 [2017] NSWCCA 221
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during oral arguments and in his written submissions, the Attorney
General premised the argument that polling to the Rajya Sabha is
not protected by Article 194(2) on the ground that such an election
does not form part of the legislative proceedings of the House
regardless of the geographical location of the election. To buttress
this argument, the Attorney General relied on three judgments of
this Court in Pashupati Nath Sukul v. Nem Chandra Jain and
Ors.,82 Madhukar Jetly v. Union of India,83 and Kuldip Nayar v.
Union of India.84
169. Such an argument, although attractive at first blush, appears
to be misconceived. In essence, the question is whether votes
cast by elected members of the state legislative assembly in an
election to the Rajya Sabha are protected by Article 194(2) of the
Constitution. Before addressing the judgments relied on by the
learned Attorney General, we will analyze the provisions of the
Constitution that govern this interesting question of constitutional
interpretation.
170. Article 80 governs the election of members to the Council of States
or the Rajya Sabha. The provision reads as follows:
“80. Composition of the Council of States. —
(1) The Council of States shall consist of—
(a) twelve members to be nominated by the President
in accordance with the provisions of clause (3); and
(b) not more than two hundred and thirty-eight
representatives of the States and of the Union
territories.
(2) The allocation of seats in the Council of States to be
filled by representatives of the States and of the Union
territories shall be in accordance with the provisions in
that behalf contained in the Fourth Schedule.
…

82 [1984] 1 SCR 939 : (1984) 2 SCC 404
83 (1997) 11 SCC 111
84 [2006] Suppl. 5 SCR 1 : (2006) 7 SCC 1
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(4) The representatives of each State in the Council of
States shall be elected by the elected members of the
Legislative Assembly of the State in accordance with
the system of proportional representation by means of the
single transferable vote.
…”
(emphasis supplied)
171. Pursuant to Article 80, the Rajya Sabha consists of twelve members
who are nominated by the President and not more than two hundred
and thirty-eight representatives of the States and Union Territories.
Significantly, under Article 80(4), the representatives of the Rajya
Sabha shall be elected by the elected members of the Legislative
Assembly of the states. Therefore, the power to ‘vote’ for the elected
members of the Rajya Sabha is solely entrusted to the elected
members of the Legislative Assemblies of the states. It constitutes
an integral part of their powers and responsibilities as members of
the legislative assemblies of each of the states.
172. The next question that arises, therefore, is whether the text of
Article 194(2) places any restriction on such a vote being protected
by parliamentary privilege. As stated above, Article 194(2) of the
Constitution reads as follows:
“194. Powers, privileges, etc., of the Houses of
Legislatures and of the members and committees
thereof. —
…
(2) 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.
…”
173. The marginal note to Article 194 uses the phrase “powers, privileges,
etc. of the Houses of Legislatures and of the members and
committees thereof.” It is a settled position of law that the marginal
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note to a section in a statute does not control the meaning of the
body of the section if the language employed is clear. With reference
to Articles of the Constitution, a marginal note may be used as a
tool to provide “some clue as to the meaning and purpose of the
Article”. However, the real meaning of the Article is to be derived
from the bare text of the Article. When the language of the Article is
plain and ambiguous, undue importance cannot be placed on the
marginal note appended to it.85 In Kesavananda Bharati v. State
of Kerala,86 Hegde, J (speaking for himself and A K Mukherjea, J)
observed as follows:
“620. […] To restate the position, Article 368 deals with
the amendment of the Constitution. The Article contains
both the power and the procedure for amending the
Constitution. No undue importance should be attached to
the marginal note which says “Procedure for amendment
of the Constitution”. Marginal note plays a very little
part in the construction of a statutory provision. It
should have much less importance in construing a
constitutional provision. The language of Article 368 to
our mind is plain and unambiguous. Hence we need not
call into aid any of the rules of construction about which
there was great deal of debate at the hearing. As the
power to amend under the Article as it originally stood
was only implied, the marginal note rightly referred to the
procedure of amendment. The reference to the procedure
in the marginal note does not negative the existence of
the power implied in the Article.”
(emphasis supplied)
174. Distinct from the marginal note, in the text of the provision, there is
a conscious use of the term “Legislature” instead of the “House of
Legislature” at appropriate places. It is evident from the drafting of
the provision that the two terms have not been used interchangeably.
The first limb of Article 194(2) pertains to “anything said or any vote
given by him in the Legislature or any committee thereof”. However,

85 Justice GP Singh, Principles of Statutory Interpretation, 15th Ed. (2021), 188-189; Bengal Immunity Com-
pany Limited v. State of Bihar, [1955] 2 SCR 603
86 [1973] Suppl. 1 SCR 1 : (1973) 4 SCC 225
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in the second limb, the phrase used is “in respect of the publication
by or under the authority of a House of such a Legislature of any
report, paper, votes, or proceedings.” There is a clear departure from
the term ‘Legislature’ which is used in the first limb, to use the term
“House of such a Legislature” in the second limb of the provision.
It is clear, therefore, that the provision creates a distinction between
the “Legislature” as a whole (in the first limb) and the “House” of the
same legislature (in the second limb).
175. As correctly submitted by Mr Raju Ramachandran, senior counsel for
the appellant, the terms “House of Legislature” and “Legislature” have
different connotations. “House of Legislature” refers to the juridical
body, which is summoned by the Governor pursuant to Article 174.87
The term “Legislature”, on the other hand, refers to the wider concept
under Article 168,88 comprising the Governor and the Houses of the
Legislature. It functions indefinitely and continues to exist even when
the Governor has not summoned the House.
176. The use of the phrase “in the Legislature” instead of “House of
Legislature” is significant. There are several parliamentary processes
which do not take place on the floor of the House, i.e. when it is
in session, having been summoned by the Governor. For instance,
there are ad hoc committees and standing committees which
examine various issues, including matters of policy or government
administration. Many of these committees do not deliberate on laws
or bills tabled in the House or cease to function when the ‘House’
is not sitting. There appears to be no reason why the deliberations
that take place in such committees (“anything said”) would not be
protected by parliamentary privilege.

87 174. Sessions of the State Legislature, prorogation and dissolution.— (1) The Governor shall from
time to time summon the House or each House of the Legislature of the State to meet at such time and
place as he thinks fit, but six months shall not intervene between its last sitting in one session and the
date appointed for its first sitting in the next session.
(2) The Governor may from time to time— (a) prorogue the House or either House; (b) dissolve the
Legislative Assembly.]
88 168. Constitution of Legislatures in States.—(1) For every State there shall be a Legislature which
shall consist of the Governor, and—
(a) in the States of Andhra Pradesh], Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu,
Telangana, and Uttar Pradesh, two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative
Council and the other as the Legislative Assembly, and where there is only one House, it shall be known
as the Legislative Assembly.
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177. The elections to the Rajya Sabha conducted under Article 80 as
referred to above, may also take place when the House is not in
session as seats may fall vacant when the legislative assembly of
the state is not in session. However, the elections remain a part of
the functioning of the Legislature and take place within the precincts
of the Legislative Assembly. Similarly, the elections for the President
of India under Article 5489 and for the Vice President under Article
6690 may also take place when Parliament or the state legislative
assemblies are not in session. However, they are an integral part of
the powers and responsibilities of elected members of the Parliament
and state legislative assemblies. The vote for such elections is
given in the Legislature or Parliament, which is sufficient to invoke
the protection of the first limb of Articles 105(2) and 194(2). Such
processes are significant to the functioning of the legislature and in
the broader structure of parliamentary democracy. There appears to
be no restriction either in the text of Article 105(2) and Article 194(2),
which pushes such elections outside of the protection provided by
the provisions. Further, the purpose of parliamentary privilege to
provide legislators with the platform to “speak” and “vote” without fear
is equally applicable to elections to the Rajya Sabha and elections
for the President and Vice President as well.
178. We will now address the cases relied on by the Attorney General to
advance his argument. In Pashupati Nath Sukul (supra), a bench
of three judges of this Court held that a member of the legislative
assembly may propose a candidature for a seat in and vote at an
election to the Rajya Sabha even before taking the constitutional oath
required under Article 188 of the Constitution. The Court observed
that an election to fill seats in the Rajya Sabha does not form a part
of the legislative proceedings of the House nor do they constitute a
vote given in the House on any issue arising before it. Therefore, it is
not hit by Article 193 of the Constitution which states that a member
of the Legislative Assembly cannot sit and vote in the House before
subscribing to the oath. Interestingly, the Court also noted that in
the intervening period between the name of the elected member
appearing in the notification and the member taking the constitutional
oath, she is entitled to all the privileges, salaries, and allowances

89 The electoral college consists of elected MPs and MLAs.
90 The electoral college consists of elected MPs.
576 [2024] 3 S.C.R.

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of a member of the Legislative Assembly. It is clear that the Court
recognized that members of the legislative assembly are entitled to
privileges even when they cannot participate or are not participating
in ‘law-making’. One of these privileges is the parliamentary privilege
bestowed on members of the legislative assembly under Article 194.
The Court held as follows:
“18. […] The rule contained in Article 193 of the Constitution,
as stated earlier, is that a member elected to a Legislative
Assembly cannot sit and vote in the House before making
oath or affirmation. The words “sitting and voting” in Article
193 of the Constitution imply the summoning of the House
under Article 174 of the Constitution by the Governor to
meet at such time and place as he thinks fit and the holding
of the meeting of the House pursuant to the said summons
or an adjourned meeting. An elected member incurs the
penalty for contravening Article 193 of the Constitution
only when he sits and votes at such a meeting of the
House. Invariably there is an interval of time between the
constitution of a House after a general election as provided
by Section 73 of the Act and the summoning of the first
meeting of the House. During that interval an elected
member of the Assembly whose name appears in
the notification issued under Section 73 of the Act is
entitled to all the privileges, salaries and allowances
of a member of the Legislative Assembly, one of them
being the right to function as an elector at an election
held for filling a seat in the Rajya Sabha. That is the effect
of Section 73 of the Act which says that on the publication
of the notification under it the House shall be deemed to
have been constituted. The election in question does
not form a part of the legislative proceedings of the
House carried on at its meeting. Nor the vote cast
at such an election is a vote given in the House on
any issue arising before the House. The Speaker has
no control over the election. The election is held by the
Returning Officer appointed for the purpose. As mentioned
earlier, under Section 33 of the Act the nomination paper
has to be presented to the Returning Officer between the
hours of eleven o’clock in the forenoon and three o’clock
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in the afternoon before the last day notified for making
nominations under Section 30 of the Act. Then all further
steps such as scrutiny of nominations and withdrawal of
nominations take place before the Returning Officer. Rule
69 of the Conduct of Elections Rules, 1961 provides that at
an election by Assembly members where a poll becomes
necessary, the Returning Officer for such election shall,
as soon as may be after the last date for the withdrawal
of candidatures, send to each elector a notice informing
him of the date, time and place fixed for polling. Part VI
of the Conduct of Elections Rules, 1961 which contains
Rule 69 and Part VII thereof deal with the procedure to
be followed at an election by Assembly members. Rule
85 of the Conduct of Elections Rules, 1961 provides that
as soon as may be after a candidate has been declared
to be elected, the Returning Officer shall grant to such
candidate a certificate of election in Form 24 and obtain
from the candidate an acknowledgment of its receipt duly
signed by him and immediately send the acknowledgment
by registered post to the Secretary of the Council of States
or as the case may be, the Secretary of the Legislative
Council. All the steps taken in the course of the election
thus fall outside the proceedings that take place at a
meeting of the House.”
(emphasis supplied)
179. In Madhukar Jetley (supra), the Court relied on Pashupati Nath
Sukul (supra) and reiterated that an election to the Rajya Sabha
does not form part of the legislative proceedings of the House and
the vote cast at such an election does not constitute a vote given
at a sitting of the House. Pertinently, both Pashupati Nath Sukul
(supra) and Madhukar Jetley (supra) did not relate to any question
bearing on the interpretation and scope of Article 194(2) or any claim
for parliamentary privilege.
180. As stated above, there is no dispute with the proposition that elections
to the Rajya Sabha are not part of the law-making functions and
do not take place during a sitting of the House. However, the text
of Article 194 consciously uses the term ‘Legislature’ instead of
‘House’ to include parliamentary processes which do not necessarily
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take place on the floor of the House or involve ‘law-making’ in its
pedantic sense.
181. Finally, the learned Attorney General placed reliance on Kuldip
Nayar (supra). In this case, a Constitution bench of this Court was
adjudicating the validity of an amendment to the Representation of
the People Act, 1951 by which (a) the requirement that a candidate
for elections to the Rajya Sabha be an elector from a constituency
in the state was removed; and (b) an open ballot was introduced in
the elections to the Rajya Sabha.
182. One of the submissions before the Court to assail the use of
open ballots in elections to the Rajya Sabha was that the votes
are protected by Article 194(2). It was contended that the right to
freedom of speech guaranteed to MLAs under Articles 194(1) and
(2) is different from the right to free speech and expression under
Article 19(1)(a), which is subject to reasonable restrictions. It was
urged that the absolute freedom to vote under Article 194(2) of the
Constitution was being diluted through a statutory amendment to
the Representation of the People Act, 1951 permitting open ballots.
While addressing this argument, the Court held that elections to fill
seats in the Rajya Sabha are not proceedings of the legislature but
a mere exercise of franchise, which falls outside the net of Article
194. The Court (speaking through YK Sabharwal, CJ) held as follows:
“Arguments based on Legislative Privileges and the
Tenth Schedule
…
372. It is the contention of the learned counsel that the
same should be the interpretation as to the scope and tenor
of the provision contained in Article 194(2) concerning the
privileges of the Members of the Legislative Assemblies
of the States who constitute State-wise electoral colleges
for electing representatives of each State in the Council of
States under the provisions of Article 80(4). The counsel
argue that the freedom of expression without fear of
legal consequences as flowing from Article 194(2) should
inure to the Members of the Legislative Assemblies while
discharging their function as electoral college under Article
80(4).
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373. This argument, though attractive, does not deserve
any credence in the context at hand. The proceedings
concerning election under Article 80 are not proceedings
of the “House of the Legislature of the State” within
the meaning of Article 194. It is the elected Members of
the Legislative Assembly who constitute, under Article
80 the electoral college for electing the representative
of the State to fill the seat allocated to that State in
the Council of States. It is noteworthy that it is not
the entire Legislative Assembly that becomes the
electoral college, but only the specified category of
members thereof. When such members assemble at a
place, they do so not to discharge functions assigned
under the Constitution to the Legislative Assembly.
Their participation in the election is only on account
of their ex-officio capacity of voters for the election.
Thus, the act of casting votes by each of them, which
also need not occur with all of them present together
or at the same time, is merely exercise of franchise
and not proceedings of the legislature.”
(emphasis supplied)
183. The protection under Article 105 and Article 194 guarantees that the
vote of an elected member of Parliament or the state legislature, as the
case may be, cannot be the subject of proceedings in court. It does
not guarantee a “secret ballot”. In fact, even when elected members
of Parliament or of the state legislature vote on Bills during a sitting
of the House, which undisputedly falls within the ambit of Articles
105 and 194, they are not assured of a secret ballot. While voting
is ordinarily carried out by a voice vote, members of the legislature
can seek what is referred to as a “division vote.” In such a case
the division of votes, i.e. which member voted in favour or against
the motion is visible to the entire House and the general public.
It cannot be gainsaid that the purpose of parliamentary privilege
under Article 194(2) is not to provide the legislature with anonymity
in their votes or speeches in Parliament but to protect them from
legal proceedings pertaining to votes which they cast or speeches
which they make. That the content of the votes and speeches of
their elected representatives be accessible to citizens is an essential
part of parliamentary democracy.
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184. Mr Raju Ramachandran, senior counsel on behalf of the appellant
has argued that the observations in Kuldip Nayar (supra) do not
constitute the ratio decidendi of the judgment and are obiter. It is
trite law that this Court is only bound by the ratio of the previous
decision. There may be some merit to this contention. However, in
any event, this being a combination of seven judges of this Court,
it is clarified that voting for elections to the Rajya Sabha falls within
the ambit of Article 194(2). On all other counts, the decision of the
Constitution bench in Kuldip Nayar (supra) remains good law.
185. Interestingly, Kuldip Nayar (supra) is yet another case where the
Court relied on the minority judgment in PV Narasimha Rao (supra) to
strengthen the proposition that while interpreting the Constitution, the
Court should adopt a construction which strengthens the foundational
features and the basic structure of the Constitution. Applying this
proposition of law to the question of whether voting to the Rajya
Sabha is covered within the ambit of Article 194(2) also brings us
to a similar conclusion.
186. One of us (DY Chandrachud, J) in K.S. Puttaswamy (Aadhaar-
5J.) v. Union of India,91 had occasion to reflect on the significance
of the Rajya Sabha and bicameralism on the “foundations of our
democracy”. It was observed that:
“1106. The institutional structure of the Rajya Sabha has
been developed to reflect the pluralism of the nation and
its diversity of language, culture, perception and interest.
The Rajya Sabha was envisaged by the Makers of the
Constitution to ensure a wider scrutiny of legislative
proposals. As a second chamber of Parliament, it acts
as a check on hasty and ill-conceived legislation,
providing an opportunity for scrutiny of legislative
business. The role of the Rajya Sabha is intrinsic to
ensuring executive accountability and to preserving a
balance of power. The Upper Chamber complements
the working of the Lower Chamber in many ways.
The Rajya Sabha acts as an institution of balance in
relation to the Lok Sabha and represents the federal
structure of India. Both the existence and the role

91 [2018] 8 SCR 1 : 2018 SCC OnLine SC 1642
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of the Rajya Sabha constitute a part of the basic
structure of the Constitution. The architecture of our
Constitution envisions the Rajya Sabha as an institution
of federal bicameralism and not just as a part of a simple
bicameral legislature. Its nomenclature as the “Council of
States” rather than the “Senate” appropriately justifies its
federal importance.
…
1108. […] As a revising chamber, the Constitution-Makers
envisioned that it will protect the values of the Constitution,
even if it is against the popular will. The Rajya Sabha is
a symbol against majoritarianism.
…
1110. Participatory governance is the essence of democracy.
It ensures responsiveness and transparency. An analysis
of the Bills revised by the Rajya Sabha reveals that in a
number of cases, the changes recommended by the Rajya
Sabha in the Bills passed by the Lok Sabha were eventually
carried out. The Dowry Prohibition Bill is an example of
a legislation in which the Rajya Sabha’s insistence on
amendments led to the convening of a joint sitting of the
two Houses and in that sitting, one of the amendments
suggested by the Rajya Sabha was adopted without a
division. The Rajya Sabha has a vital responsibility in
nation building, as the dialogue between the two Houses
of Parliament helps to address disputes from divergent
perspectives. The bicameral nature of Indian Parliament
is integral to the working of the federal Constitution. It lays
down the foundations of our democracy. That it forms a part
of the basic structure of the Constitution, is hence based
on constitutional principle. The decision of the Speaker on
whether a Bill is a Money Bill is not a matter of procedure.
It directly impacts on the role of the Rajya Sabha and,
therefore, on the working of the federal polity.”
(emphasis supplied)
187. The Rajya Sabha or the Council of States performs an integral function
in the working of our democracy and the role played by the Rajya
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Sabha constitutes a part of the basic structure of the Constitution.
Therefore, the role played by elected members of the state legislative
assemblies in electing members of the Rajya Sabha under Article
80 is significant and requires utmost protection to ensure that the
vote is exercised freely and without fear of legal persecution. The
free and fearless exercise of franchise by elected members of the
legislative assembly while electing members of the Rajya Sabha is
undoubtedly necessary for the dignity and efficient functioning of the
state legislative assembly. Any other interpretation belies the text of
Article 194(2) and the purpose of parliamentary privilege. Indeed, the
protection under Articles 105 and 194 has been colloquially called a
“parliamentary privilege” and not “legislative privilege” for a reason.
It cannot be restricted to only law-making on the floor of the House
but extends to other powers and responsibilities of elected members,
which take place in the Legislature or Parliament, even when the
House is not sitting.
J. Conclusion
188. In the course of this judgment, while analysing the reasoning of
the majority and minority in PV Narasimha Rao (supra) we have
independently adjudicated on all the aspects of the controversy
namely, whether by virtue of Articles 105 and 194 of the Constitution
a Member of Parliament or the Legislative Assembly, as the case
may be, can claim immunity from prosecution on a charge of bribery
in a criminal court. We disagree with and overrule the judgment of
the majority on this aspect. Our conclusions are thus:
188.1. The doctrine of stare decisis is not an inflexible rule of law.
A larger bench of this Court may reconsider a previous
decision in appropriate cases, bearing in mind the tests
which have been formulated in the precedents of this Court.
The judgment of the majority in PV Narasimha Rao (supra),
which grants immunity from prosecution to a member of
the legislature who has allegedly engaged in bribery for
casting a vote or speaking has wide ramifications on public
interest, probity in public life and parliamentary democracy.
There is a grave danger of this Court allowing an error to
be perpetuated if the decision were not reconsidered;
188.2. Unlike the House of Commons in the UK, India does not
have ‘ancient and undoubted’ privileges which were vested
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after a struggle between Parliament and the King. Privileges
in pre-independence India were governed by statute in
the face of a reluctant colonial government. The statutory
privilege transitioned to a constitutional privilege after the
commencement of the Constitution;
188.3. Whether a claim to privilege in a particular case conforms
to the parameters of the Constitution is amenable to judicial
review;
188.4. An individual member of the legislature cannot assert a claim
of privilege to seek immunity under Articles 105 and 194
from prosecution on a charge of bribery in connection with a
vote or speech in the legislature. Such a claim to immunity
fails to fulfil the twofold test that the claim is tethered to the
collective functioning of the House and that it is necessary
to the discharge of the essential duties of a legislator;
188.5. Articles 105 and 194 of the Constitution seek to sustain
an environment in which debate and deliberation can take
place within the legislature. This purpose is destroyed when
a member is induced to vote or speak in a certain manner
because of an act of bribery;
188.6. The expressions “anything” and “any” must be read in the
context of the accompanying expressions in Articles 105(2)
and 194(2). The words “in respect of” means ‘arising out of’
or ‘bearing a clear relation to’ and cannot be interpreted to
mean anything which may have even a remote connection
with the speech or vote given;
188.7. Bribery is not rendered immune under Article 105(2) and the
corresponding provision of Article 194 because a member
engaging in bribery commits a crime which is not essential
to the casting of the vote or the ability to decide on how the
vote should be cast. The same principle applies to bribery
in connection with a speech in the House or a Committee;
188.8. Corruption and bribery by members of the legislatures erode
probity in public life;
188.9. The jurisdiction which is exercised by a competent court to
prosecute a criminal offence and the authority of the House
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to take action for a breach of discipline in relation to the
acceptance of a bribe by a member of the legislature exist
in distinct spheres. The scope, purpose and consequences
of the court exercising jurisdiction in relation to a criminal
offence and the authority of the House to discipline its
members are different;
188.10. The potential of misuse against individual members of the
legislature is neither enhanced nor diminished by recognizing
the jurisdiction of the court to prosecute a member of the
legislature who is alleged to have indulged in an act of
bribery;
188.11. The offence of bribery is agnostic to the performance of the
agreed action and crystallizes on the exchange of illegal
gratification. It does not matter whether the vote is cast in
the agreed direction or if the vote is cast at all. The offence
of bribery is complete at the point in time when the legislator
accepts the bribe; and
188.12. ⁠The interpretation which has been placed on the issue in
question in the judgment of the majority in PV Narasimha
Rao (supra) results in a paradoxical outcome where a
legislator is conferred with immunity when they accept a
bribe and follow through by voting in the agreed direction.
On the other hand, a legislator who agrees to accept a
bribe, but eventually decides to vote independently will be
prosecuted. Such an interpretation is contrary to the text
and purpose of Articles 105 and 194.
189. The reference is answered in the above terms. Having answered
the question of law raised by the Impugned Judgement of the High
Court in this reference, the Criminal Appeal stands disposed of in
the above terms.
190. Pending applications, if any, stand disposed of.

Headnotes prepared by: Nidhi Jain Result of the case:
Reference answered and
Criminal Appeal disposed of.