The Supreme Court of India, in September 2023, referred to a seven-judge Constitution Bench the question of whether Members of Parliament and State Legislators can claim immunity from prosecution for bribery under Articles 105(2) and 194(2) of the Constitution. The referral arose from the case of Sita Soren, a Member of Parliament from the Jharkhand Mukti Morcha, charged under the Prevention of Corruption Act for allegedly accepting a bribe to vote in a particular manner during a Rajya Sabha election.
Background
The question of legislative immunity for bribery has its origins in the 1998 Constitution Bench decision in P.V. Narasimha Rao v. State (CBI/SPE), decided in the context of the 1993 JMM bribery scandal. In that case, a five-judge Bench held by a 3:2 majority that MPs who accepted bribes to vote in a particular manner and actually voted accordingly were protected by parliamentary privilege under Article 105(2), which provides that no MP shall be liable to any proceedings in court in respect of anything said or any vote given in Parliament. However, MPs who accepted bribes but did not actually vote were held to be prosecutable.
This asymmetry created a perverse outcome: legislators who completed the corrupt bargain by voting received immunity, while those who accepted bribes but did not follow through could be prosecuted. The Narasimha Rao ruling had been widely criticised by constitutional scholars, anti-corruption activists, and subsequent judicial dicta as providing a legal shield for corruption in the legislative process.
Key Holdings
The referral order addressed the following questions for the larger Bench:
Scope of parliamentary privilege: Whether Articles 105(2) and 194(2) provide immunity from criminal prosecution to legislators who accept bribes in connection with their votes or speeches in the legislature.
Reconsideration of Narasimha Rao: Whether the 1998 decision in P.V. Narasimha Rao correctly interpreted the scope of legislative privilege, particularly the distinction between legislators who voted after accepting bribes and those who did not.
Constitutional purpose: Whether parliamentary privilege, which was designed to protect legislators' freedom of speech and voting from executive interference, was intended to extend to criminal conduct such as bribery that corrupts the very exercise of that privilege.
Anti-corruption framework: Whether the interpretation in Narasimha Rao is consistent with the broader constitutional commitment to probity in public life and the legislative framework of the Prevention of Corruption Act, 1988.
Implications for Practitioners
The referral signalled the Court's intent to revisit one of the most controversial precedents in Indian constitutional law. For practitioners handling corruption cases involving legislators, the outcome would determine whether bribery in connection with legislative functions can be prosecuted or remains shielded by privilege.
Criminal law practitioners representing or prosecuting elected officials should note that the referral does not automatically suspend the Narasimha Rao ruling — it remains the law until the larger Bench decides otherwise. Pending cases where legislative privilege has been raised as a defence will await the larger Bench's determination.
For constitutional law practitioners, the referral presents a significant opportunity to argue for an interpretation of parliamentary privilege that aligns with modern anti-corruption norms. The seven-judge Bench would need to balance the institutional need to protect legislative independence against the imperative of preventing corruption from being constitutionally immunised. The eventual verdict would have far-reaching implications for the accountability of elected representatives across India's legislatures.