Monday, March 4, 2024

Dissenting judgement of Justices S. C. Agarwal and A.S Anand in Narasimha Rao case upheld by 7-judge bench, no immunity for lawmakers indulging in graft

A 7-judge Constitution Bench of Supreme Court comprising the Chief Justice, Dr. D. Y. Chandrachud, Justices A.S. Bopanna, M.M. Sundresh, Pamidighantam Sri Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Mishra unanimously pronounced a judgment in a 135 page long judgement in Sita Soren v Union of India on March 4, 2024. The case was heard and judgement was reserved on October 5, 2023. The case was filed on March 26, 2014 and registered on March 28, 2014 as a SLP. It was admitted on December 4, 2018. The Criminal Appeal No. 451 of 2019 was registered on March 7, 2019. Sita Soren is a third time MLA from Jharkhand. It has been alleged that she took bribe to ensure voting for a candidate during a Rajya Sabha election. The fact has emerged that she did not vote for the candidate from whom she is said to have taken bribe for voting.  

The 7-judge bench has answered the question of law raised by the Judgement of the High Court. It implies that Sita Soren will face the charge sheet filed by the CBI against her on the charge that she had taken bribe to cast vote in Raya Sabha polls. She is daughter-in-law of JMM chief Shibu Soren and wife of late Durga Soren. She was in jail for seven months. She is now out on bail. She is an MLA from Jama, Dumka, in Jharkhand.

It was a regular criminal appeal arising out of a judgment of the Jharkhand High Court, declining to quash prosecution against Sita Soren, the appellant, who is being prosecuted, under relevant provisions of the Prevention of Corruption Act and the Indian Penal Code, for the alleged offense, of taking a bribe to vote in a Rajya Sabha election, Sita Soren, the appellant was at the relevant time a sitting MLA of Jharkhand. She's alleged to have taken a bribe, from an independent candidate, to vote for him rather than for her party candidate. But in the event, the vote was actually for her party candidate, because that comes out in the open voting, then there were complaints that election was countermanded. There was a fresh election and again, she voted for her party candidate, etc. But she was sought to be prosecuted on this allegation. Originally, the Writ Petition (Criminal) was filed on June 18, 2013 and registered on June 21, 2013 in Jharkhand High Court. The single judge bench of Justice R.R.Prasad had heard and passed the order appeal on February 17,  2014. The High Court had examined as to whether Article 194 (2) of the Constitution of India confers any immunity on the MLAs for being prosecuted in a criminal Court of an offence involving offer or acceptance of bribe. 

It all began in the context of the notification by the Election Commission of India fill up two vacant seats of Rajya Sabha from Jharkhand by March 31, 2012. March 30, 2012 was fixed for the poll. Praveen Kumar Singh, Pradeep Kumar Balmuchu, Sanjeev Kumar, Ansuman Mishra, Pawan Kumar Dhoot and Raj Kumar Agarwal filed their nominations. It emerged that none of the major political parties, which fielded its candidate in the election, had decisive majority to to get their candidate elected. Jharkhand Mukti Morcha (JMM) had fielded its candidate Sanjeev Kumar. But 10 MLAs of JMM including Sita Soren, the petitioner proposed to nominate R.K.Agarwal, an independent candidate.

In such a backdrop, Babu Lal Marandi and Dr. Ajay Kumar, lodged a complaint on March 27, 2012, before the Chief Election Commissioner of India, alleging that the process of election being influenced by the money power and horse trading. Responding to the complaint, the Election Commission of India alerted concerned departments including the Income Tax Department on March 27, 2012 itself to check the menace of Horse Trading and use of money power. In the late night of March 29, 2012, The Chief Commissioner of Income Tax, Ranchi received information to the effect that huge money is being taken from Jamshedpur to Ranchi for distribution among some of the MLAs participating in the Rajya Sabha election. On receiving such information, Income Tax authority, with the help of the local police, put a picket on Jamshedpur-Ranchi Highway. During that course, an Innova car was intercepted from which unaccounted cash of Rs. 2.15 crores were recovered. One Sudhanshu Tripathy, the custodian of the cash, explained that the cash of Rs. 2.15 crores had been handed over to him by Sumitra Sah, son-in-law of R.K.Agarwal to be handed over to Arun Kumar Khandelwal, an employee of Jay Shree Motors Ltd, Ranchi, belonging to R.K.Agarwal. Upon seizure of cash, the then Deputy Director, Income Tax, Ranchi, lodged a written complaint to Officer-Incharge of Namkum Police Station, Ranchi, which was registered as Namkum P.S. Case No. 58 of 2012 on 30/03/2012, under Section 171(F) and 188 of the Indian Penal Code.

While adjudicating in a Public Interest Litigation (PIL), Supreme Court, found it to be a grave case of involvement of money power to influence the process of the election of the Council of the States, directed the CBI to take up the investigation relating to the criminality of the persons involved. In compliance with the order, Principal Secretary, Election Commission of India, asked the Secretary, Union Mnistry of Personnel, Public Grievance & Pension to entrust the case relating to the Election of Rajya Sabha to CBI. The CBI took up the investigation of Namkum P.S. Case No. 58/2012 and re- registered the case as RC 2(S)/ 2012-AHD-R, for investigation. The CBI found that out of 80 elected MLAs, 79 MLAs, participated in the election, whereas one MLA of CPI (M), did not participate. During investigation, it was found that the petitioner by calling R.K.Agarwal on cell phone, asked him to pay Rs. 50 lakhs as an advance for proposing his nomination. Lateron, Air bag was handed over at the residence of Nalin Soren, where most of the MLAs of JMM were present. This Air bag was dropped by Sita Soren  at the residence of one Rajendra Mandal. 

It was found that in the evening of March 29, 2012, Rs. 1 corer was given by Raj Kumar Agarwal at hotel Radison Blue, Ranchi. The said air bag containing money was brought to the residence of the petitioner and on the following day, it was taken in the vehicle of IOCL to Jamshedpur. The Election Commission did countermand the election and, therefore, Agarwal was seen coming to the residence of this petitioner at several occasions for getting back a sum of Rs. 1.50 crores, but Sita Soren did not oblige him. After the investigation, a charge sheet was filed against number of accused persons, including Sita Soren on the charge that the petitioner did receive illegal gratification of Rs. 50 lakhs from R.K.Agarwal for proposing his nomination and also Rs. 1 crore for voting in his favour but the petitioner never voted in favour of Agarwal. 

On submission of the charge sheet, the Court took cognizance of the offences punishable under Sections 120B and 171 (E) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against Sita Soren the petitioner and others vide order dated June 7, 2013. It was this Court's order taking cognizance of the offences was challenged in the High Court.

Justice Prasad held that "I am of the view that the act of the petitioner of receiving money pursuant to the conspiracy and the agreement with R.K.Agarwal, will have no nexus with the vote on account of the fact that she did not cast vote in favour of the said R.K.Agarwal and, thereby, she will have no immunity as guaranteed under Sub-clause (2) of Article 194 of the Constitution of India. Accordingly, I do not find any illegality with the order taking cognizance and, thereby, it never warrants to be quashed."

The 7-judge Constitution Bench disagreed with the judgement of a 5-judge Constitution Bench in P.V. Narasimha Rao v. State (1998) and overruled the judgment of the majority. In a 3:2 majority judgment, a 5-judge Bench consisting of Justices S.C. Agrawal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha and S. Rajendra Babu in the P V Narasimha Rao case held that legislators enjoy immunity from criminal prosecution for bribery in matters connected to their speech and votes in Parliament and Legislative Assemblies as per Article 105(2). In the majority verdict, Justice S P Bharucha had held: “… no member (of Parliament) is answerable in a court of law or any similar tribunal for what he has said in Parliament." The dissenting order by Justices S.C. Agrawal and Dr. A.S. Anand stood against extension of immunity for having received bribe for the purpose of giving a vote in the House for the acts preceding the making of such speech or giving vote by the legislators. 

By an order dated September 20,2023, a five-judge bench of the Court had recorded prima facie reasons doubting the correctness of the decision in P.V. Narasimha Rao and referred the matter to a larger bench of seven judges.   

Prior to that on September 23, 2014, a bench of two judges of the Court, observed that it was of the view that since the issue arising for consideration is “substantial and of general public importance”, it must be placed before a larger bench of three judges of this court. On March 7, 2019, a bench of three judges which heard the appeal observed that the precise question was dealt with in a judgment of a 5-judge bench in P.V. Narasimha Rao case. This bench was of the view that “having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance”, the matter must be referred to a larger bench.

The 7-judge bench appreciated the dissenting order of Justice S.C. Agarwal and Justice Dr. A.S. Anand in P.V. Narasimha Rao case. Justice Agarwal had 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. Justice Agarwal observed that the anomaly 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 for the cause of action for the proceedings giving rise to the law; and The judgment of Justice Agarwal has specifically dwelt on the question as to when the offence of bribery would be complete. The judgment notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being 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 offence 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 offence of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority in the P.V. Narasimha Rao case.

The 7-judge bench observes, "The judgment of the majority in P.V. 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."

This Constitution Bench judgement reads:"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. 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."

It concludes that "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; Corruption and bribery by members of the legislatures erode probity in public life."

In the penultimate paragraph, the bench observed that "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.

Notably, the 7-judge Constitution Bench which upholds the dissenting judgement of Justices Agarwal and Anand in Narashimha Rao case refers to the dissenting order in Court's verdict of 5-judge Constitution Bench in Justice (Retd.) K.S. Puttaswamy v. Union of India (2018). The latter had referred to the dissenting jugement of Justice H. R. Khanna as part of 5-judge bench in the case of ADM Jabalpur v. S. S. Shukla (1976) to uphold it. During the course of the hearing it was cited in Sita Soren case as well. 
In the Puttaswamy case the majority judgement observed, "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 Sabha constitutes a part of the basic structure of the Constitution." It has been reiterated by the 7-judge bench. It recorded that "It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an indicator of, and is essential to, constitutional federalism....Therefore, Rajya Sabha could not have been by-passed while passing the legislation in question and doing away with this process and also right of the President to return the Bill has rendered the statute unconstitutional." In his dissenting judgement, Dr. Chandrachud observed, "The Aadhaar legislation was passed as a money bill in the Lok Sabha. Whether it was permissible, in constitutional terms, to by-pass the Rajya Sabha, is the question. The role of the Rajya Sabha in a bicameral legislative structure, the limits of executive power when it affects fundamental rights and the duty of the state to abide by interim orders of this Court are matters which will fall for analysis in the case."

It emerges that dissenting judgements are like pole stars which pave the path for comprehensive justice.   

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