Privileges Constrained

Last week, the Indian Supreme Court delivered its judgment in Sita Soren v. Union of India, holding that parliamentary privilege – the constitutionally recognized legal immunity of legislators – does not extend to bribe-taking for exercising their legislative vote or speech a certain way. Legislators would, therefore, be subject to ordinary criminal law concerning allegations of bribery in exchange for their use of legislative powers, and Articles 105 and 194 of the Constitution – which confer legal immunity on legislators “in respect of anything said or any vote given…in Parliament/Legislature” – were to be construed narrowly, in accordance with an essentiality test that extends privilege only to members’ actions essential to discharging their legislative functions.

In this blog post, I discuss the Court’s formulation of the essentiality test, as well as its conclusions on the availability of privilege for bribe-taking. I argue that while the ruling can strengthen democratic institutions since it protects the integrity of legislative processes, certain risks in the essentiality test’s composition – which risk depriving important legislative functions of privilege – must be addressed.

The “Essentiality” Test and Constrained Parliamentary Privileges

The instant case undertook a reconsideration of the Supreme Court’s previous judgment in Narasimha Rao v. State, which extended privilege to allegations of bribery against members. In that case, the Court held that the words “in respect of” under Articles 105 and 194 – which qualify members’ actions eligible for privilege – had to be construed widely, enabling them to function fearlessly (¶136). Further, it held that the legislator must act legislatively in pursuance of the bribe for it to have been “in respect of” a legislative act, and a bribe-taking legislator that did not vote, i.e., exercise the legislative act, would be ineligible to obtain privilege for bribe-taking (¶143).

The instant case, similarly, arose from allegations of bribery, where a legislator exercised their vote contrary to the bribe’s conditions, i.e., voted in a manner opposed to what the bribe-giver allegedly paid the legislator for. The High Court, based on Narasimha Rao, found the legislator ineligible for privilege, for their actions departed from the bribe’s conditions, meaning their actions were not “in respect of” a legislative act (¶5). The Supreme Court, deciding on Narasimha Rao’s correctness, disagreed with both its propositions: first, the amplitude with which privilege – under Articles 105 and 194 – was to be assessed, and second, the availability of privilege for bribery, as well as the connection between bribery and the act of voting.

First, it noted that a wide construction of parliamentary privilege, which extended protection to actions unrelated to legislative duties, was undesirable. Legislators seeking immunity must demonstrate a connection between  the impugned privilege-claiming act and their legislative tasks to avail privilege (¶85). Given the status of privilege as creating a class of persons – legislators – exempt from judicial accountability, the set of actions for which this exemption could be availed must be constrained, which, it noted, must concern actions “essentially related to their functioning”, both of the House, as well the legislator’s (¶87). Thus far, the standard appears reasonable, for it requires an assessment of the nature of the privilege-claiming act, with the enquiry centered on assessing its legislative character.

Later, however, the Court tweaks the standard to do one more thing: apart from the legislative character of the privilege-claiming act, it must also bear a relationship with a legislator’s essential duties, further tightening the availability of privilege:

91. …[T]he assertion of a privilege by an individual member of Parliament or Legislature would be governed by a twofold test. First, the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator.

In this way, the Court becomes the arbiter both of the act’s character, as well as its significance to the legislative task. While the former principle has been recognized in a substantial body of case-law – both before and after Narasimha Rao – courts have, till yet, refrained from qualitatively assessing whether the privilege arose from the fulfilment of a duty that was essential. This risks further narrowing the domain of legislative acts eligible for privilege. I discuss this in the next section.

Based on the essentiality standard, the Court finds privilege unavailable for bribe-taking for voting/speaking in a certain direction, for this possessed no nexus with performing a legislator’s tasks. This was because the bribery offence was complete irrespective of the performance of any legislative tasks, for it did not depend on the bribe’s conditions’ subsequent fulfillment (¶125). Given the commission of the bribery offence without the involvement of any act legislative in character, the Court concludes – at the first stage of its enquiry itself (assessing the act’s nature) – that a member cannot claim privilege for bribery, and must face judicial proceedings.

Lastly, the Court also assesses the comparative landscape on privilege and bribery, noting a general trend of construing privilege narrowly, and carving out corruption-related offences therefrom: in R v. Chaytor, the UK Supreme Court found bribery to fall outside Parliament’s “core or essential business”, making legislators criminally liable (¶47); the American Supreme Court, in US v. Brewster and Gavel v. US, confined privilege primarily to “deliberative and communicative processes” of legislators, finding bribe-taking and unauthorized publications to generally fall outside this standard; and the Canadian Supreme Court, in House of Commons v. Vaid, laid down a standard assessing the “close and direct connection” between the privilege-claiming act and legislative business. On this basis, the Court finds comparative law to align with its views, holding privilege unavailable for bribery.

Parliamentary Privilege Hollowed? On the Test’s Implications for Unessential Legislative Acts

The instant case serves as a continuation of case law averse to construing privilege widely, aiming to constrain legislators’ legal immunities. While the proposition of only legislative acts – or acts bearing a connection with the legislative activity – obtaining privilege has been affirmed priorly, its framing as only “essential duties of a legislator” availing privileges is risky. This enables the Court to enquire into the impugned privilege-claiming act’s significance to legislative business, in addition to its nature. While the legislative exercise, as noted by the American Supreme Court, has at its core “deliberative and communicative processes”, such deliberative processes are accompanied by a certain degree of chaos, hostility, and raucousness. The significance of these additional elements may not be immense, and these processes, therefore, may not – in the instant case’s formulation – be essential to the legislator’s duties. They are, however, politically important, and enable legislators to express – occasionally through non-verbal means – their views.

In State of Kerala v. K. Ajith, a member who destroyed a Legislative Assembly’s furniture and other possessions, allegedly as a mark of protest against the ruling government, sought to claim privilege against criminal offences arising therefrom. The Supreme Court, rejecting this privilege claim, applied a standard identical to that pronounced in the instant case – the essentiality of the privilege-claiming act to the legislative function – holding that legislative business could have been performed without the destruction of property, and that privilege, accordingly, would be unavailable (¶66). This enquiry, therefore, risks removing from privilege protection acts that carry expressive and deliberative value but are likely to be deemed unimportant, falling outside the core of legislative business. It may also raise concerns about the separation of powers, for the Court would adjudicate the legislative significance of legislators’ functions, a task that is – as apparent from the enquiry – best suited for legislators themselves. Given, however, the Court’s role as ultimately adjudicating on privilege’s availability, it would be suitable to make the enquiry more deferential, enquiring solely into the legislative character of the privilege-claiming act, not its overall significance.

Bribery Unessential to the Legislative Function

In applying the essentiality test to bribery, the Court held it wholly divorced from the legislative function, for a legislator’s acts after bribe-taking – committed in Parliament by voting or speaking in accordance with the bribe’s conditions – were immaterial to the offence’s commission. A bribe-taking legislator would commit the offence the moment they obtained the bribe, and their legislative actions in pursuance thereof – through speaking or voting – would not immunize them from criminal law’s application (¶118-19). This holding has been generally welcomed, for it reins in recalcitrant legislators, preventing the privilege loophole’s exploitation. It creates an expectation of integrity from the legislative process, and prevents – as the Court notes – the creation of a “class of citizens…enjoy[ing] unchecked exemption from…the law” (¶87). In this sense, it would further democratic values, and stand as a significant ruling that affirms the values of probity in the legislator’s relationship with their electorate. Despite the problems associated with the essentiality test’s composition, the Court applies it correctly – at its first stage, assessing the acts’ nature – in conceptualizing bribe-taking as divorced from a legislator’s tasks.

Conclusion

The instant case is progressive and democracy-furthering in its rejection of bribery as possessing parliamentary privilege, but its composition of the essentiality test to adjudge the availability of privilege is slightly problematic. While it does not enquire into the qualitative significance of bribery to the legislator’s function due to its prior conclusion of the completion of the bribery offence without the subsequent performance of a legislative act, the standard it pronounces may warrant reconsideration. This must be directed towards restoring only its nature-assessing component, removing from the Court’s domain an enquiry into the privilege-claiming act’s qualitative significance. This would enable ancillary expressive acts of legislators – those that do not constitute its deliberative core – to also avail parliamentary privilege.