SITA SOREN versus UNION OF INDIA
[2024] 3 S.C.R. 462, Supreme Court of India, 2024
Outcome: Reference answered
Segment: Issues
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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 
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[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 
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[1998] 1 WLR 669
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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:
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(1994) 3 ALL ER 407
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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 
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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 
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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 
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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 
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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:
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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 
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442 US 477 (1979)
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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 
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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 
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Sita Soren v. Union of India
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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Sita Soren v. Union of India
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, 
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[2017] NSWCCA 221
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Sita Soren v. Union of India
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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Sita Soren v. Union of India
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.
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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 
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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.