When Law Miscommunicates: Parliamentary Privilege, Corruption, and Constitutional Indeterminacy

I. ABSTRACT

This paper dissects the changing shape of parliamentary privilege under Article 105(2) of the Constitution of India as an elaborate constitutional telecommunication-failure. The present article begins with a focused inquiry into the inherent semantic looseness of the constitutional expression ‘in respect of’ to argue how the Supreme Court’s now-obnoxious majority decision in P.V. Narasimha Rao v. State (CBI/SPE) (1998), though unstated in terms, essentially extended statutory privilege of law-making under Art 105(2) to Legislators tainted with corruption, which ultimately created an institutional disconnect with the constitution.

The article uses H.L.A. Hart’s theory of ‘open texture’ and various theories of ‘strategic ambiguity’ from communication studies to explore as to how constitutional ‘vagueness’ might be systematically “invaded” by institutional actors for a specific agenda. It critically analyzes the significance of the pronouncement in the recently landmark seven-judge bench ruling in Sita Soren v. Union of India (2024) as a much-needed “repair mechanism” of the legal framework from the systemic failure of twenty-six years and argues through a qualitative, doctrinal and comparative approach, that judicial interpretation has the potential, and is in fact often required, to transcend rigid technical legalistic approaches in favor of democratic and equitable outcome protection from privileged power corruption against public interests.

 

Keywords: Parliamentary Privilege, Article 105(2), Constitutional Ambiguity, Legal Indeterminacy, Strategic Ambiguity, Sita Soren v. Union of India, Rule of Law.

II. INTRODUCTION 

Law is by its very nature a communicative activity; it is the medium of normative structures, state empowerment, and the allocation of institutional prerogatives. Given the inherent tendency for language-and more particularly legal language-to be characterized by what H.L.A. Hart referred to as the “open texture” of law[1], it is hardly surprising to find patches of interpretative uncertainty in many of our constitutional texts.

We find in constitution, far from being incidental, that this uncertainty is structural-a product, in part, of those who penned the constitution wishing to grant the executive some measure of discretion-but the breakdown of constitutional communication happens when this discretion comes to be characterized by what theorists of communication have termed “strategic ambiguity.”[2]

This breakdown not only transforms constitutional text from communication, to a document where all and sundry, seeing their own interests served by reading it in a certain manner, can opportunistically exploit its language, it comes at great risk to the rule of law. There is, nowhere perhaps more conspicuously and enduringly, that such breakdown of the constitution has made itself apparent than in the ever-recurrent dilemma and the constitutional crisis, in India surrounding parliamentary privilege. At the heart of all those contests lies Article 105(2) of the Indian Constitution which stipulates as under:- “No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof…”[3] Until 1998, and for over decades, this open-ended provision with its vaguely construed “in respect of” functioned as an important site of language, institutional, and ethical, misunderstanding-with a catastrophic culmination in a three-to-two majority of the Indian Supreme Court in P.V. Narasimha Rao v. State (CBI/SPE) (1998)[4].

In what seemed at best, a slavishly literalist interpretation, the majority, in the very case where the Supreme Court saw criminal intent and payment of bribe, yet felt emboldened to conclude that MPs who accepted payment would be immune from criminal prosecution provided they made a contribution to the debates, or did vote. By reading the “in respect of” in this unacceptably elastic and open manner, the court severed, indeed structurally broke, the law from ethics and transformed a shield aimed to preserve the independence of legislators, into a cloak of judicial license to political malfeasance, corruption, and law-lessness of decades duration[5].

The landmark correction to that great distortion of our law, came in the historic 2024 judgment by the Seven-Judge constitution bench in Sita Soren v. Union of India (2024)[6], where the court, in an entirely unanimous decision, struck down the earlier P.V. Narasimha Rao judgment and laid bare its flawed logic. The court in Sita Soren laid down, among other important issues, that the offence of accepting a bribe is complete the moment the bribe is accepted.

The subsequent acts of legislative duty or vote thereafter, are distinct from the offense of bribery, and do not warrant an immunity from proceedings under Article 105(2). This article argues that the journey from P.V. Narasimha Rao to Sita Soren proves that structural misunderstandings of our constitutional text can compromise the rule of law, and that rigorous judicial interpretation becomes crucial to correct such textual or communicative flaws[7].

To prove this contention, the article divides into four segments.

• Firstly, it shows why Article 105(2) with its open textured phrase “in respect of” lent itself for the purpose of judicial misuse under the broad heading of Legal indeterminacy, including the theory of Open Texture.
• Secondly, it shows the Strategic Interpretation, on the court floor of the Article 105(2) to secure the outcome of the Narasimha Rao’s judgement.
• Thirdly, it expounds the Sita Soren judgement as the corrective mechanism under law
• Fourthly, with the help of the US and UK comparitive law perspectives[8], it will set a constitutional demarcating line for reasonable parliamentary liberty and absolute criminality for legislators.

III. THE ANATOMY OF ARTICLE 105(2)

In order to understand the pathological structure of the constitutional misfire which is Article 105(2), a close examination of the text of this section is mandatory. This provision is an ostensibly absolute immunity clause. Legislators shall “not be liable to any proceedings in any court ‘in respect of’ anything said or any vote given” in Parliament[9]. The most significant operational node of this clause, it may argued, is the word ‘respect of’, which as opposed to statutorily precise terms that establish a narrow causal connection, has traditionally had a very flexible interpretation, typically as analogous to ‘relating to’ or ‘with regard to’[10]. This broad and expansive phrasing throws a far too wide net[11]. It would encompass even distant chronological neighbours of actual Parliamentary transactions. The immense fluidity of such phraseology may lead to an inability to differentiate clearly as between behaviour strictly within the precincts of Parliament and covert criminal enterprise outside these precincts[12].

This weakness is accentuated when the phrase ‘respect of’ is compared against narrower usages frequently adopted for constitutional purposes such as “arising out of” or ‘connected with’.[13] The phrase “arising out of’ demands not only some connection but direct proximate cause, and implies that one event or action naturally precipitates or results from another.

If the word ‘a of the sentence ‘any vote given’ had preceded the word ‘the, viz, ‘any vote given the liability incurred out of such vote could then perhaps be read as limited only to such as flows directly out of such voting as a result and would be wholly without regard to pre-arranging transactions’, that is as the present writer ventures to think, that the antecedent corruption would fall entirely without the exception.

Even the term ‘connected with’ as opposed to a general and unlimited one implies a more concrete link and less of the vagaries attached to ‘respect of’.  Since the broadest possible wording has been used in ‘respect of’ without internal pointers or restricting sub-headings, then a literal interpretaton thereof could render an abortive bribing conspiracy shielded if it ultimately resulted in a vote being given[14].

The looseness of this phrasing is illustrative of the open texture of law, first identified by Professor Hart[15]. Legal rules had ‘core of certainty’, but they all suffer from ‘penumbra of uncertainty’, or a “failure to make complete directions in terms of which this choice cannot be mechanical”[16]. Whilst the certainty part might very well apply to exempt a legislator from suit in respect of, for instance defamation, as a result of speeches given in the floor of the House, it is in the penumbra that the difficulty is the acute when considering Legislative bribery: ‘because the word ‘respect of’ failed to carry into itself a mechanical indication whether the words referred solely to those actions or those antecedent events and transactions that stimulated those actions,’ then the Article 105 (2) could potentially provide fertile ground for anarchy, rather than law, and it would be prone for gross strategic manipulation[17].

IV. THE 1998 NARASIMHA RAO CRISIS

This culminated in The 1998 Narasimha Rao Crisis, where the constitutional text had, through the process of adjudicatory distortion, degenerated from a protection of Parliamentarians to an unamougable immunity charter[18]. The political controversy around the no-confidence motion that challenged the minority governments election at 10.2.1993, initiated the constitutional Crisis: In order to defeat the no-confidence motion, members of the then opposition government (as members are on motion debate, where opposition will lead the debate), made criminal conspiracy to induce opposition M.P.’s of Jharkhand Mukti Morcha & Janatadal with considerable pecuniary benefits to vote in favor of them, i.e. To defeat the motion.

Even though the motion was passed but it was later discovered that this conspiracy has taken the bribe for which the opposition members. Thus tried for various offense including section of Prevention of corruption act[19].

Here arises, the critical question whether prosecution for bribery could continue against the parliamentarians in view of article 105(2), wherein it was held that “no M.P. Shall be liable to any proceedings in any court in respect of any vote which he gives in either House of Parliament or in any committee thereof, or in respect of any matter or thing which is done by him in the performance of his duties under the Constitution in the discharge of his duties under this Constitution in accordance of his duty as a Member of parliament, or as a Member of any such Committee.”

Ajit Singh, an accused, in this conspiracy, has confessed bribery but abstained himself from the voting process, on the day of motion. When the question come before the Supreme Court as The case of P.V. Narasimha Rao, the central debate remained as whether the said article 105 (2) protects any MP who accepts bribe but did not proceed to vote for a particular cause?

As it is well evident in the legislative function where all the actions of MP is performed inside the walls of parliament with in particular time frame & thereby the issue arises regarding the connection with their work in the parliament, because all actions in the parliament or its committee are attributed to be done in the discharge of their duty[20].

Court became divided and by a slim 3:2 majority judges, took a hyper literalist stand[21], & gave judgment in favor of the parliamentarians as follows; in cases of criminal transaction like bribe which happen inside the walls of the parliament, and if M.P’s are seen as participating in this, to vote to that specific favor, their bribe-taking becomes a direct and proximate “action in respect of their parliamentary vote”, which is hence, shielded from external Judicial scrutiny[22].

On the other hand, the members who were caught in bribe taking, and abstained themselves from voting (e.g. Ajit Singh), did not got the similar protection for their legislative actions; “since, ‘in respect of’ their criminal intent or their failed to act on that in time’s could not be stated as ‘acting’ in pursuance of or for effectuating the legislative process. The perverse interpretation has converted Art 105 (2) in an “unqualified shield” giving absolute indemnity to their illicit activities leading to; Creation of “super-citizens” within the democratic framework & Creation of an absurd incentives for corruption, where one could bribe legislative members to make ‘corrupt parliamentarians’ an unprosecutable elite under law,” as held in an erudite judgment by justice L.P. Singh in the said case[23].

The decision of the majority had; by reducing Art. 105(2) into an unaccountable charter, effectively turned constitutionalism on its head and converted parliamentarians into an unanswerable group[24].

V. THE 2024 SITA SOREN CORRECTION

All the more a 26 years long “interpretational overreach”, by Supreme Court, resulting in perversion of the constitutional protection provided by the said clause, has finally been over-ruled by a 7 judge Constitutional bench, of the Apex Court, in a recent case namely Sita Soren Vs Union of India (2024)[25]. The context and the case are strikingly similar; a Jharkhand State Legislative assembly member, after taking a bribe, failed to vote in favor of particular candidate of Rajya sabha, thereby not adhering to the bribe taker agreement. In the said case, Supreme Court in order to nullify the judgment in Narasimha Rao had held, the crime of taking bribe under the prevention of Corruption Act comes into existence the very moment, MP/ MLA takes bribe or agrees to take bribe and it is completed irrespective of whether that member performed the legislative action in the pursuant of the agreement or not[26].

In other words, any action that causes damage to the institutional Integrity like bribery, for which immunity could be claimed[27].  The rationale provided by the court, “that the term “in respect of” cannot be invoked to protect acts which constitute separate offenses, like taking of bribe, since such acts do not relate to any speech, vote, or any other part of the legislative process, thus the said immunity clause cannot be extended to protect acts committed outside the scope of legislative function; bribery is an off-the-block action which, whether inside or outside, does not qualify it”.

With its 2024 decision, the apex Court reasserted its role as an institutional correction mechanism, effectively repairing what the 1998 judgment had irreparably broken by allowing a hyper-literal interpretation of the Constitution[28].

By prioritizing functional integrity and genuine deliberative freedom, the court ensured that the essential purpose of constitutional privileges; safeguarding democracy; is preserved for future generations and that criminal misconduct, not legislative privilege, defines the accountability of Parliamentarians[29]. 

VI. INTERDISCIPLINARY ANALYSIS

 The reading of clause 2 of article 105 from the perspective of communications theory; “strategic ambiguity”; also provides evidence for understanding that the looseness in wording the term “in respect of” had more of a deliberate than an unconscious element to it[30]. Emerging from the colonial administration in which the use of criminal statutes for repressive purposes in suppressing political dissent was a constant theme, the Constituent Assembly had a fundamental interest in preserving complete autonomy for the legislative branch[31]. The broadly encompassing nature of the terms used to express the executive’s inability to interfere was in effect designed to be a safeguard or insulating jacket for legislators to consider their duties in the legislative assembly without any inhibition[32].

However, an intentional choice of language to create flexibility-to enable political protection-also inherently has a downside to it; and if communication is to remain open-ended to secure a political virtue, that flexibility is to some extent a window for those who are bent on exploiting a vice under the cover of the protected virtue of legislative independence[33].

With its implicit assumptions about high levels of moral behaviour, the makers did not anticipate that such wording could eventually be uncoupled from its inherent purpose and serve to decriminalize conduct as a clear cut criminal matter such as bribery[34].

The ability to so “strip” and thus ‘despatch’ legislative freedom into a structural defect in the communicative fabric of the Constitution became possible when the language would be treated to serve as a license to exempt a legislator’s act from the general criminal law of the land and to thus sanction political corruption behind an ‘oxymoronic immunity’[35].

VII. COMPARATIVE ANALYSIS

A similar difficulty that besets the conflict between the general rule of law and legislatorial privileges, it has been observed that some western democracies have attempted to resolve these issues in a very particular, yet practical manner[36].

The US Supreme Court explicitly rebuffed a senator’s claim to privilege against charges of bribery in the case of United States v. Brewster, in the opinion penned by Chief Justice Warren Burger [37],“the payment of a bribe is not a part of the legislative process any more than the bribery payment itself.”  

The US stance draws a distinction between actus reus of parliamentary proceedings, and actus reus of corruption on its own; where the latter is considered an everyday crime not covered by the scope of legislature[38].

The Salmon Commission in United Kingdom, on bribery within parliamentary affairs had stated (1976) “the present procedures within Parliament for examination of allegations relating to bribery would appear not to be designed to investigate and report on this type of transaction with the thoroughness which should accompany serious allegations of financial corruption.”[39]

VIII. CONCLUSIONS & SUGGESTIONS 

Thus to reinforce the path paved by the Indian Supreme Court in Sita Soren case, it would require an express legislative enunciation of the parliamentary privileges in Article 105(3) as substitute of convention, so as to define strict parameters that would explicitly exclude corruption as subject matter of ‘any privilege’; also there must be a functional approach on the part of judiciary that would ensure that parliamentary privilege cannot be claimed on mere mechanical application but should be restricted strictly to cases where the privilege is an essential need for functional existence of legislature, i.e. To facilitate genuine debate in a truly legislative assembly; additionally there is also the need for the establishment of a parliamentary committee/tribunal, that is non-partisan and independent, for the purposes of overseeing the ethical conduct of its members and disciplinary actions would be taken against corrupt members by Parliament, whilst for prosecution for the statutory offences like bribery regular criminal courts would have to maintain jurisdiction.

IX. REFERENCES

[1] H.L.A. HART, THE CONCEPT OF LAW 124–36 (Penelope A. Bulloch & Joseph Raz eds., 3d ed. 2012).

[2] Eric M. Eisenberg, Ambiguity as Strategy in Organizational Communication, 10 COMM. MONOGRAPHS 227, 227–42 (1984).

[3] India Const. art. 105, cl. 2.

[4] P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 (India).

[5] Vicki C. Jackson, Parliamentary Privilege, Legislative Immunity, and the Rule of Law, 46 WM. & MARY L. REV. 1073, 1081–88 (2004).

[6] Sita Soren v. Union of India & Anr., 2024 SCC OnLine SC 645 (India).

[7] Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 HARV. L. REV. 630, 661–69 (1958).

[8] United States v. Brewster, 408 U.S. 501 (1972) & R v. Chaytor, [2010] UKSC 52, [2011] 1 A.C. 684 (U.K.).

[9] Supra, Note 3.

[10] Supra, Note 4.

[11] Cass R. Sunstein, There Is Nothing That Interpretation Just Is, 30 CONST. COMMENT. 193, 197–201 (2015).

[12] Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 414–20 (1985).

[13] ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 356–61 (2012).

[14] Supra, Note 4. & Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. REV. 1, 12–20 (1990).

[15] Supra, Note 1.

[16] H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607–15 (1958) & Id.

[17] Brian Bix, H.L.A. Hart and the “Open Texture” of Language, 10 LAW & PHIL. 51, 53–61 (1991) & Supra, Note 2. & Joseph Raz, The Rule of Law and Its Virtue, 93 L.Q. REV. 195, 198–202 (1977).

[18] Supra, Note 4 & Upendra Baxi, The Avatars of Indian Judicial Activism: Explorations in the Geographies of Injustice, in FIFTY YEARS OF THE SUPREME COURT OF INDIA 156, 180–83 (S.K. Verma & Kusum eds., 2000).

[19] The Prevention of Corruption Act, 1988, §§ 7, 12, 13 (India).

[20] C.K. Allen, Law in the Making 255–58 (7th ed. 1964).

[21] Aharon Barak, Purposive Interpretation in Law 85–97 (2005) & Supra, Note 13.

[22] Supra, Note 4.

[23] Id. (per S.C. Agrawal, J., dissenting) (India).

[24] Supra, Note 17. & Supra, Note 7.

[25] Supra, Note 6.

[26] Supra, Note 19., §§ 7, 7A (India).

[27] Jeremy Waldron, Legislative Supremacy and Legislative Intent, 18 OXFORD J. LEGAL STUD. 1, 18–23 (1998).

[28] Rosalind Dixon, Updating Constitutional Rules, 2009 SUP. CT. REV. 319, 323–31 (2009) & David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 925–31 (1996).

[29] Justice V.R. Krishna Iyer, Constitutional Morality and Parliamentary Democracy, 4 J. CONST. & PARLIAMENTARY STUD. 1, 6–11 (1970) & Tarunabh Khaitan, Political Insurance for the (Relative) Poor: How Constitutional Rights Matter, 8 GLOB. CONST. 364, 382–86 (2019) & Supra, Note 6.

[30] Supra, Note 2.

[31] GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 50–57 (1966) & 7 CONSTITUENT ASSEMBLY DEBATES 979–85 (Nov. 1948).

[32] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 492–95 (8th ed. 2018) & KAUL & SHAKDHER, PRACTICE AND PROCEDURE OF PARLIAMENT 245–49 (7th ed. 2016).

[33] Supra, Note 2. & Cass R. Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 961–72 (1995).

[34] GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE 636–42 (1999) & Dieter Grimm, Constitutional Adjudication and Democracy, 33 ISR. L. REV. 193, 203–07 (1999).

[35] Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption 138–49 (1995) & Mark E. Warren, What Does Corruption Mean in a Democracy?, 48 AM. J. POL. SCI. 328, 328–43 (2004) & Supra, Note 6.

[36] Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 1–18 (2007) & Erskine May, Parliamentary Practice 203–15 (25th ed. 2019).

[37] Supra, Note 8.

[38] Id. & United States v. Johnson, 383 U.S. 169, 184–85 (1966) & James J. Brudney, Congressional Accountability and the Speech or Debate Clause, 50 U. PITT. L. REV. 1, 24–31 (1988).

[39] ROYAL COMMISSION ON STANDARDS OF CONDUCT IN PUBLIC LIFE, REPORT OF THE ROYAL COMMISSION ON STANDARDS OF CONDUCT IN PUBLIC LIFE (SALMON COMMISSION REPORT).