The privileges and immunities are subject to oath and members of Parliament are not “super citizens”

The glaring issue of Parliamentary Privileges has again gained momentum as the Hon’ble Supreme Court has reserved its judgement in the case of Sita Soren vs Union of India on 5th October 2023. In this case, one of the contentious issues raised is the correctness of the PV Narasimha Rao case, which interpreted Article 105 of the Constitution in such a way, that it gave immunity from prosecution to lawmakers involved in corrupt practices, bribery is one of them.

If one looks from the lens of morality, certainly, the law of immunity as settled in the PV Narasimha Rao case is a fraud on representative democracy. The only good thing about this bad judgement (PV Narasimha Rao case) is the dissenting opinion given by Justice (retd) SC Agarwal and Justice (retd) AS Anand. On scrutinising this judgement by the Judges bench, dissenting opinion may find its place as a correct position of law, wherein both the lordships held, “a Member of Parliament won’t enjoy immunity under article 105(2) or under Article 105(3) of the constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof”.

Certain grounds question the correctness of PV Narasimha Rao's case; First, from the plenary reading Article 105(1), it is clear, that the privileges are not absolute, it mentions the words “Subject to the provisions of this Constitution.” Taking a bribe and giving a vote or speech in pursuance of the same, does not amount to discharge of duty in a faithful manner and is a manipulated act. Therefore, privilege is subject to oath.

Second, certain categorical cases can be termed as malpractice, across the section of society and committing such malpractice irrespective of place, is an offence and no privilege could ever justify such acts. It will be in the interest of the constitution and parliamentary democracy if those “certain circumstances” are construed narrowly and do not accommodate acts that are universally condemned, here it is taking bribes.

Third, not prosecuting a Member of Parliament for taking bribes is against the ideals of equality (Article 14), as we have seen in the prosecution of Judges and Bureaucrats, who have been involved in taking bribes. Three organs of the government stand on equal footing and give privilege by waiving off prosecution for one organ (Legislature) of a government, knowing it has committed an offence, which would otherwise invite prosecution if done by the other two organs (Judiciary and Executive), is purely a case of discrimination. For this reason, Advocate Ashok Arora in one of his articles, comments Member of Parliaments to be “Super Citizens”.

Fourth, it hampers the checks and balances among the organs of government, as courts cannot convict the corrupt acts inside parliament in the name of parliamentary privileges and immunities. As no checks come, the deterrent factor departs.

Fifth, privilege intends to serve a greater good, which is not accepting bribes. There needs to be a distinction for the kind of choices made by parliamentarians, and any choice, if not in coherence with the oath of the member, is made, it cannot be waived in the name of privilege. It must be for this purpose, Lord Solomon in the House of Lords on the issue of privileges said, “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, are possibly a serious mistake”.

Previously to do away with the evils of the PV Narasimha Rao case, The National Commission to Review the Working of Constitution recommended an amendment to Article 105(2), which would not cover corrupt acts as privileges. For the smooth functioning of the Constitution and its functionaries, provisions of the Constitution must be interpreted with objectivity. Such an interpretation will give correct meaning to the intentions of constitution framers, this will further help in avoiding ambiguities and will serve the purpose for which that provision of the constitution is meant. Being specific to the issue concerned, the provisions about parliamentary privileges are meant only for smooth functioning and proper discharge of duties by parliamentarians and invoking any other reasoning would only be a useless formality, creating another blunder as was done in PV Narasimha Rao's case.

Senior Advocate KK Venugopal in one of his lectures delivered in 2005, mentions the unity of common law countries having a Cabinet system of parliamentary democracy for zealously guarding privileges by the incursions of courts. For this reason, a balanced judgement would be required on the current issue which would not be subverted by an amendment and be accepted by the governments to come.

(The writer is a Delhi-based advocate, views are personal)