The 1998 SC judgment in PV Narasimha Rao was controversial because of a strange interpretation of Article 105 by the Court. The gist of the judgment was that an MP who takes a bribe for voting in a particular manner in the House and votes accordingly enjoys immunity from prosecution under the Prevention of Corruption Act. Another aspect of this interpretation was that if the MP, after taking money, does not vote in favour of that party or person in the House, he/she enjoys no immunity under Article 105 and is liable to be prosecuted. The simple meaning of this judgement is that a member of the legislature who takes a bribe for voting in favour of another party, which invariably is the ruling party of that time, and votes in the House as promised, can escape the consequences of the law. Thus, the Court was seen to be approving bribery by the legislators.

Privileges and immunities of members of the legislature and the legislature itself refer to the special rights enjoyed by them for the smooth and effective functioning of the legislature. A legislative House cannot function freely without these special rights. In all parliamentary democracies, these special rights are available to the members and the House. In England, the mother of parliaments, members of the House of Commons secured these rights after a prolonged struggle against the monarch. Our Constitution adopted the Westminster system of parliamentary democracy and, therefore, provided that all the privileges available to the members of the House of Commons as of January 26, 1950, when the Constitution came into force, shall be available to the members of the Indian legislatures.

However, these special rights are enjoyed by the members of the legislature only in the context of the functioning of the House. Otherwise, the legislators and ordinary citizens are equal before the law. Such special rights are not available to the members in a criminal case. The most significant privilege of a legislator is the freedom of speech in the House. Articles 105 and 194 provide absolute protection to them in the House with respect to their speeches and votes.

The question dealt with in PV Narasimha Rao was whether such immunity and privilege were available to the MPs of the JMM Mukti Morcha who took bribes to vote in favour of the Rao government. As explained earlier, the SC (in 1998) held that those MPs enjoyed immunity under Article 105 and hence could not be prosecuted for bribery. After 25 years, the seven-judge bench on March 4 held that the judgment was wrong. The Court ruled that the MPs or MLAs cannot claim privileges that are not essentially related to the 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,” the Court ruled.

While overruling the 1998 judgment, the SC made certain assertions that, from the point of view of the legislature, are of concern. The history of privileges in the UK reveals numerous confrontations with the judiciary involving the rights of the citizens. One of the key privileges of the legislature is the power to punish the offender. This often brought the Commons into confrontations with the judiciary.

In India too, such confrontations have occurred in the past. In MSM Sharma (1959), the SC conceded the superior status of the privileges compared to the fundamental rights of citizens. But in Keshav Singh (1965), the SC through its advisory opinion held that Article 21 of the Constitution is superior to legislative privileges. Later, in Raja Ram Pal (2007), the Court took the position that it has the right to find out whether a privilege exists in a given case. But it held that if the Court is convinced about the existence of a privilege, it will step back and let the legislature deal with it. But in the March 4 judgment, the SC went further and held it would also decide whether the privilege is necessary for the House to collectively discharge its functions. This may, perhaps, be interpreted as an attempt to tread on the legislature’s domain.

Another assertion the Court made is that Articles 105 and 194 also apply to voting for Rajya Sabha, the President and the Vice President elections. It has made a distinction between the legislature and the legislative House used in Article 194. This distinction is tricky. The term “a House of the legislature” is used in the context of the publication of the proceedings; in fact, each House publishes its own report. Therefore, it is necessary to mention that the term “House of the Legislature” cannot have any other significance.

The reasoning to bring the voting for Rajya Sabha under Article 194 is questionable. Voting for the Rajya Sabha cannot be treated as a part of the proceedings of the assembly because it never forms a part of the agenda of the House. The March 4 judgment overruled all past judgments of the SC that had held voting for Rajya Sabha is not a part of the proceedings of the assembly. It is not clear why those decisions have been overruled.

PDT Achary is a former secretary general, Lok Sabha. The views expressed are personal