Title: Sita Soren v/s Union of India

Court: The Supreme Court of India

Case no.: Criminal Appeal No 451 of 2019

Decided on: September 20, 2023

Coram: Before Dr D.Y. Chandrachud, C.J. and A.S. Bopanna, M.M. Sundresh, J.B. Pardiwala and Manoj Misra, JJ.

Introduction

An election was held on March 30, 2012, for two members of the Rajya Sabha representing the State of Jharkhand. The appellant was a member of the Legislative Assembly belonging to the Jharkhand Mukti Morcha. The allegation against the appellant is that she accepted a bribe from an independent candidate to cast her vote in his favor.

However, as revealed by the open balloting for the Rajya Sabha seat, she did not cast her vote in favor of the alleged bribe giver. Instead, she cast her vote in favor of a candidate from her own party. She was charged with taking a bribe, and the State prosecuted her. She appealed to a three-judge bench in the High Court of Jharkhand.

Brief Facts:

An election was held on March 30, 2012, for two members of the Rajya Sabha representing the State of Jharkhand. The appellant was a member of the Legislative Assembly belonging to the Jharkhand Mukti Morcha. The allegation against the appellant is that she accepted a bribe from an independent candidate to cast her vote in his favor.

However, as revealed by the open balloting for the Rajya Sabha seat, she did not cast her vote in favor of the alleged bribe giver. Instead, she cast her vote in favor of a candidate from her own party. The round of the election in question was rescinded, and a fresh election was held, during which the appellant voted in favor of the candidate from her own party.

The appellant moved the High Court to quash the charge-sheet and the criminal proceedings instituted against her. The appellant relied on the provisions of Article 194(2) of the Constitution. The High Court, in the impugned judgment, declined to quash the criminal proceedings on the grounds that the appellant had not cast her vote in favor of the alleged bribe giver, and thus, was not entitled to the protection under Article 194(2).

The three-judge Bench hearing the present appeal was of the view that, “having regard to the wide ramifications of the question that has arisen, the doubts raised, and the issue being a matter of public importance,” it required referral to a larger Bench, as may be considered appropriate. Accordingly, the matter has been placed, pursuant to the administrative directions of the Chief Justice of India, before this Bench of five judges.

Question: (1) whether Politicians (MPs/MLAs) are immune from bribe under Article 194(2) of the Constitution of India?

Court Decision and Analysis: The Court inclined to agree with the submissions of the Amicus Curiae and Mr. Gopal Sankarnarayan, senior counsel, that the view expressed in the decision of the majority in PV Narasmiha Rao requires reconsideration by a larger Bench. Our reasons prima facie for doing so are formulated below:

(i) Firstly, the interpretation of Article 105(2) and the corresponding provisions of Article 194(2) of the Constitution 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 are 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 recognizes the individual right to the freedom of speech and expression, Article 105(2) institutionalizes that right by recognizing 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 that may arise independently of the exercise of the rights and duties as a Member of Parliament or of the legislature of a state;

(ii) Secondly, in the course of the judgment in PV Narasmiha 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 of the cause of action for the proceedings giving rise to the law;

(iii) Thirdly, the judgment of Justice SC Agarwal has specifically dwelt on the question as to when the offense of bribery would be complete. The judgment notes that the offense is complete with the acceptance of the money or when the agreement to accept the money is 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 offense 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 offense of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority.

The Bench has already noted above that efforts to seek a review of the judgment in PV Narasmiha Rao and later in proceedings under Article 32 of the Constitution were not successful. One of us (Justice Dr. D.Y. Chandrachud), while delivering a concurrent opinion for a Bench of five judges in Kalpana Mehta v. UOI India9 (para 221), had occasion to observe that should the correctness of the view in PV Narasmiha Rao fall for reconsideration in an appropriate case, a larger bench may have to consider the issue.

The view of the majority has serious ramifications for the polity and the preservation of probity in public life. For the above reasons, prima facie at this stage, the court considered the view that the correctness of the view of the majority in PV Narasmiha Rao should be reconsidered by a larger Bench of seven judges. The court accordingly requests the Registry to place the papers before the Chief Justice for constituting a larger Bench of seven judges.

The Hon’ble Supreme Court of India

Written by Harshit Tiwari

Unfold Law – Best law firm in Bangalore